text:
    16607.
    RUSSELL v. LIFE INSURANCE COMPANY OF VIRGINIA.
    1. Where a suit was filed and made returnable to a certain term, and process was duly issued thereon, and where the plaintiff’s attorney, at the second term, on discovering that the suit had not been served, applied to the court for an order to perfect service, and the order was granted, in which the next succeeding (or the third) term was made the return term, and there is no evidence to show that the plaintiff’s attorney was guilty of laches, it can not be said by this court that such order should not have been granted; and where, in pursuance of such order, the defendant then was served, and, because of a defect in the process, the service was irregular and defective, but not void, the trial judge was authorized to hold that the plaintiff was not guilty of neglect in making no effort to procure further and perfect service prior to an adjudication that tlie service as made was not sufficient. Where, on such adjudication being made several terms later, the plaintiff took immediate steps to obtain legal and proper service, and the same was made, the court did not err then in refusing to dismiss the petition for want of service.
    2. Where a notice to the defendant of the holder’s intention to bring suit on a promissory note, providing for the payment of attorney’s fees, stated that the suit would be filed in a certain court, returnable to the September term, 1922, and where, although the petition was filed in due time for the September term, service was not made until after the court at the December term, 1922, granted an order to perfect service, and making the following March, 1923, the appearance term, the defendant was not given the notice necessary under the Civil Code (1910), § 4252, in order for the plaintiff to recover the attorney’s fees. Notice naming a term preceding the term to which the suit is finally made returnable will not suffice. The demurrer to that part of the petition which related to the claim of attorney’s fees should have been sustained.

      (a) The court having erred in not sustaining the demurrer attacking the claim for attorney’s fees, the judgment will be affirmed, provided the plaintiff, at the time the remittitur from this court is made the judgment of the court below, will strike that part of the recovery relating to attorney’s fees. Otherwise the judgment is reversed.
    Decided November 18, 1925.
    Complaint; from Barrow superior court—Judge Stark. April 30,1925.

      G. A. Johns, U. H. Chandler, for plaintiff in error.

      W. H. Quarterman, contra.
   Bell, J.

This action was filed in the superior court of Barrow county which has four regular terms of court yearly. By an act approved August 18, 1923, pending the litigation, the times for holding court were changed. See Ga. L. 1923, p. 63. This statement will obviate the confusion which might otherwise arise from the following statement as to the terms of court. The suit was filed and process was issued thereon to the September term, 1922. No service having been made in the meantime, the plaintiff’s attorney, on learning of this fact, applied to the court at the next succeeding term, being the December term, 1922, for an order to perfect service, and the judge granted an order as follows: “It being made to appear to the court that there has been no service of copy under this petition, it is thereupon ordered by the court that service of copy hereof be now made, and that the March term, 1923, be made the appearance term of this case.” It will be noticed that this order did not provide in express terms for an amendment of the process. The defendant was served on December 26, 1922, with, a copy of the petition and of the old process calling upon Mm to appear at the preceding September term. At the March term, 1923, he appeared and made a motion to dismiss the suit, on the ground that the attempted service was void, because there was no process requiring him to be and appear at the March term, 1923. Nothing further was done in the ease until the April term, 1924. At this term the court ruled that no proper service had been made, but passed an order making the following July term the appearance term, and directing the clerk to issue a new process, returnable thereto, and requiring that service of a copy of the petition and of all orders and of the new process be made upon the defendant fifteen days before the July term, 1924; and service was made accordingly. The court also, at the April term, 1924, overruled the defendant’s motion to dismiss the action, filed at the March term, 1923, and the defendant duly excepted pendente lite. At the April term, 1925, the case came on for trial and resulted in a directed verdict in favor of the plaintiff for the principal, interest, and attorney’s fees as sued for, and the defendant has brought the ease to this court for review. In the bill of exceptions the defendant has assigned error on his exceptions pendente lite to the overruling of his motion to dismiss the action, and also upon a judgment at the term of the trial, overruling a demurrer theretofore duly filed by him, attacking so much of the petition as sought a recovery of attorney’s fees. There is no contention that the evidence at the trial did not'demand the verdict.

It is within the power of the judge of the superior court at the appearance term or at a subsequent term, where due diligence is shown, to grant an order allowing a. new process to issue, and directing that the defendant be served, where service has not been previously made. Rowland v. Towns, 120 Ga. 74 (2) (47 S. E. 581). In the absence of evidence showing that the plaintiff had been guilty of neglect, this court can not say that the trial judge should not have granted the order at the December term, 1922, directing that the succeeding March term, 1923, should be the appearance term, and that the defendant should be served for that term. And as to the subsequent proceedings, the plaintiff having applied at the second term for an order to perfect service, and service of a copy of the petition and the original process having then been made, such service, though irregular, was not void and could have been amended, although the “clerk neither changed the date of the original process nor appended a new process, nor did he attach this order to the original writ and copy.” Baker v. Thompson, 75 Ga. 164. This being true, the present case is distinguishable from Union Marine Fire Ins. Co. v. McDermott, 31 Ga. App. 676 (121 S. E. 849), in which the process attached to the petition was held to be void, and in which, therefore, the rule was applicable that the judge had no authority at or after the return term to order a process to issue where none whatsoever, or only a void process, had been previously issued. The case is also unlike that of Nail v. Popwell, 32 Ga. App. 20 (122 S. E. 632), because in that case there was no service or entry of service. As was said by the Supreme Court in Atlantic &c. R. Co. v. Singletary, 159 Ga. 805 (126 S. E. 794), “This case is different in its facts from those cases where there was no return and entry of service, and several terms of court had elapsed before an order was asked for service.” Since the plaintiff moved at the second term to have service perfected, and since, the service then ordered to be made for the next ensuing term was only defective, and not void, this court can not hold that the plaintiff was guilty of laches in not asking for further service before the trial court had adjudicated that the service that had been made was insufficient. We are of the opinion that the ease is controlled by the decision of the Supreme Court in the Singletary case above cited.

2. The second headnote requires no elaboration. See Toole v. Cook, 15 Ga. App. 133 (3) (82 S. E. 772).

Judgment affirmed on condition.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    16615.
    Sutherland v. Donovan, guardian.
   Bell, J.

1. Where an amendment to a pleading is tendered and disallowed, and there is no order directing that it be filed and made a part of the record '(see Duffey v. Harris, 19 Ga. App. 646 (2), 91 S. E. 1006), it is . no part of the record, and it can not be specified as such in the bill of exceptions. It follows that this court can not consider what purports to be a copy of a proffered but rejected amendment to the appeal in this case. See Sayer v. Brown, 119 Ga. 539 (2) (46 S. E. 649), Wallace v. State, 17 Ga. App. 434 (1) (92 S. E. 889).

Decided November 18, 1925.

Appeal; from Fulton superior court—Judge Humphries. April 14, 1925.

Walter R. Brown, W. K. Dial, for plaintiff in error.

Slaton & Hoplcins, contra.

2. No one has a right to appeal except parties to the case in which the appeal is entered. Dupree v. Drake, 94 Ga. 456 (19 S. E. 242) ; Arnold V. Water Power & Mining Co., 147 Ga. 91 (92 S. E. 889). While an appeal may be taken from a judgment allowing a year’s support, by a person who has filed objections, even though they are subsequently disallowed or stricken, yet where a person appears and merely tenders a demurrer to the application, and merely offers to file objections to the return of the appraisers, and the ordinary refuses to hear or consider such demurrer and objections, or even to allow them filed, and they are never filed, the person tendering them does not become a party to the proceedings, and can not appeal from the judgment admitting the return to record. This case is distinguishable from Phelps v. Daniel, 86 Ga. 363 (12 S. E. 584), since in that ease the objections were filed and heard and then disallowed and stricken; and for a similar reason it is unlike the case of Pierce v. Felts, 146 Ga. 809 (92 S. E. 541).

3. The above-stated facts affirmatively appearing on the face of the appeal and disclosing that it was invalid, the court did not err in refusing to allow the ease to be tried thereon by a jury, or in rendering a judgment virtually dismissing the same.

4. Since the appeal could in no event have been sustained as a valid appeal, it is immaterial that the court overruled the motion of the associate counsel to postpone the trial until his client and the leading counsel could be present.

Judgment affirmed.

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


author: Bull, J.

text:
    16269.
    BECKER v. HUMPHRIES.
    1. In an action by a physician to recover for professional services rendered, it is sufficient to allege that he is a physician and was employed as such, that he rendered the services alleged, and that the reasonable value of the same was the amount sued for. It is not necessary that he should further allege that he is licensed.
    2. A suit upon an open account may be sustained though the evidence shows an express agreement, where it is further proved that the plaintiff has' fully performed his part of the agreement and nothing remains to be done except for the other party to make payment. Although the physician in this case wras suing for the value of medical services rendered to a third person, it was not necessary, the action being on account, to allege an express agreement to pay, irrespective of whether such agreement should be proved, to entitle him to recover.
    3. Where a person requests a physician to perform services for a third person, for whom the person making the request is under no obligation to procure and pay for medical aid, the law does not raise an implied promise to pay merely because of the request and of the furnishing of the services in compliance therewith. In such a case the physician can not recover against the person calling him unless it appears that the services were rendered under an express contract that the person making the request is to pay therefor, or unless the proved surrounding circumstances plainly indicate that it was the intention of both parties, at the time, that the services were to be furnished on the credit of the person requesting them. While in this ease there was no evidence of such express promise, there was circumstantial evidence to authorize the inference of an intention by both parties that the defendant should be liable. There is no merit in any of the special grounds of the defendant’s motion for a new trial. The court did not err in overruling the motion.
    Decided November 19, 1925.
    Complaint; from Camden superior court—Judge Highsmith. December 30, 1924.

      L. J. Cowart, James T. Vocelle, for .plaintiff in error.

      8. C. Townsend, contra.
   Bull, J.

D. G. Humphries brought a suit against J. H. Becker, alleging that the defendant was indebted to him in the sum of $570 on an account, a copy of which was attached to and made a part of the petition, and was as follows:

“Fernandina, Fla., August 12, 1920. “Mr. J. H. Becker to D. Granville Humphries, M. D., Dr. “Statements monthly.

“Visits to J. D. Skinner on order, 1918, Dee. 2, 3, 4, 5,

6, 7, 8, 9, 10, 11, 12, 13, 14, each $35.00 .......... 420.00

“Two visits to J. D. Skinner on order, 1918, Dec. 15.. 50.00

“Dr. Freeman: To consultation to order of J. H. Becker 100.00

“570.00”

Defendant filed a general demurrer, which the court overruled. The trial resulted in a verdict in the plaintiff’s favor for $310. The defendant excepts to the overruling of his demurrer and to the refusal of his motion for a new trial.

Counsel for plaintiff in error contend that the petition failed to set forth a cause of action, because there is no allegation that the plaintiff had been licensed to practice medicine in the State of Georgia. We think that the allegation was unnecessary. In the first place it appears that the physician was located in the State of Florida, and the petition does not show on its face that he practiced in Georgia. The account is for medical services rendered to one J. D. Skinner, without disclosing where they were rendered. So far as appears from the petition, the patient may have been in Florida or elsewhere. But regardless of this, it seems to be the rule that in an action by a physician for the value of professional services rendered by him, it is sufficient to allege that he is a physician, that he was employed as such, that he'!rendered the services alleged, and that the reasonable value thereof was the amount sued for. Fincher v. Davis, 27 Ga. App. 494 (2) (108 S. E. 905). By the weight of authority it was not necessary that the petition should go further and show that he had a license to practice according to the legal requirements of the State in which the services were performed. Of course, if it appears that the physician was practicing without a license, in violation of statute, he can not recover. Murray v. Williams, 121 Ga. 63 (48 S. E. 686). But this would ordinarily be a matter of defense. In Durland v. Grimes, 18 Ga. 693 (1), one of the grounds of error was that in the declaration it was not averred that the plaintiff was a licensed physician, and, as such, entitled to sue for and recover for his medical services. The Supreme Court said, “By reference to the form in Ghitty it will not be necessary to make this allegation.” See also, in this connection, Avera v. Tool, 74 Ga. 398 (2); Griner v. Baggs, 4 Ga. App. 232 (1) (61 S. E. 147); Bartow Guano Co. v. Adair, 29 Ga. App. 644 (3) (116 S. E. 342); Leggat v. Gerrick, 35 Mont. 91 (2) (8 L. R. A. (N. S.) 1238; 88 Pac. 788); 22 Am. & Eng. Encyc. Law (2d ed.), 798; 30 Cyc. 1601. What is said upon this question in Grantham v. Fleming, 13 Ga. App. 184 (2) (78 S. E. 1113), is obiter. The copy of the account, which was expressly made a part of the petition, shows that the plaintiff was an “M. D.,” and this court will take judicial cognizance that this abbreviation imports prima facie that the plaintiff was a physician. Towler v. Carithers, 4 Ga. App. 518 (61 S. E. 1132).

A further contention (the only other one made under the demurrer) is that it appears from the petition that the plaintiff is claiming a liability against the defendant for professional services rendered to a third person, for which it is insisted the plaintiff can not recover without showing an express agreement by the defendant to pay for the same.-,. Even if so, the petition was sufficient to withstand the attack of a mere general demurrer based upon this ground. It alleges that the defendant was indebted on the account, and that the services were rendered “on order,” the' reasonable inference being that the order was that of the defendant. Furthermore, a suit upon an open account may be sustained though the evidence shows an express agreement, where it is proved that the plaintiff has fully performed his part of the agreement and nothing remains to be done except for the other party to make payment. In the nature of the action it was not necessary for the plaintiff to allege an express agreement by the defendant to pay, irrespective of whether such agreement should be proved to entitle him to recover. Chatham Abattoir & Packing Co. v. Painter Engineering Co., 28 Ga. App. 383 (1) (111 S. E. 82); 1 Corpus Juris, 649, 650; Southern Ry. Co. v. Grant, 136 Ga. 303 (71 S. E. 422, Ann. Cas. 1912C, 472). As against the contentions which the plaintiff in error has made, we hold that the court did not err in overruling the general demurrer.

We come next to the consideration of the exceptions to the overruling of the motion for a new trial. The evidence being otherwise sufficient to authorize the verdict, we address ourselves to the one question as to whether or not the proof was sufficient to show the defendant’s liability for medical services rendered to a third person. The plaintiff testified as follows: “I know Mr. Becker. I reside in Fernandina, Nassau county, Florida. The attached statement of that account, to wit: Yisits to J. D. Skinner on order, 1918, Dee. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, each $35.99, $480; two visits to J. D. Skinner on order, 1918, Dee. 15, $50; Dr. Freeman, to consultation to order of J. H. Becker, $100, is correct and true, as to each recital, 'and no part of the same has ever been paid. The account is correct and is still unpaid, and I rendered the professional service set forth in the bill, at the instance or request of Mr. J. H. Becker, of St. Marys, Georgia. I am a physician practicing at Fernandina, Fla. I performed the services set forth in the bill at the instance of Mr. J. H. Becker, and while Mr. Skinner was sick Mr. Becker asked me if it was necessary to procure the services of a trained nurse, and I told him one was necessary, and Mr. Becker paid her. I engaged Dr. Freeman, of Jacksonville, Florida, at the instance of Mr. Becker, for the purpose of a consultation, and Dr. Freeman looks to me for the amount of his services. At the time Mr. Becker asked me if I needed another doctor I informed him that I did, for the purpose of consultation, and asked him if he cared to get one from Savannah or elsewhere, and he asked me to get a Jacksonville doctor, and that he knew of none, so I suggested Dr. Freeman, because he would suit me better; so Mr. Becker told me to go ahead and get Dr. Freeman, which I did. The bill of Dr. Freeman was made out to me by Dr. Freeman, and it is up to me to pay the same, which is $100. When Mr. Becker asked me to get Dr. Freeman he gave me no written order; but at the time I was talking with Mr. Becker about getting Dr. Freeman, Mr. Becker and I were at the home of Mr. Skinner, and his request was verbal and not by written order. The different times I was summoned to the bedside of Mr. Skinner, sometimes he would send word. The first time I was called to Mr. Skinner I was in St. Marys, and Mr. Becker came to me and told me he wanted me to go out where Mr. Skinner was living, and Mr. Becker told me that Dr. Thigpen had been treating Mr. Skinner, but had to go away, and Mr. Becker told me to look him (Skinner) over, and to do what was necessary for him, and said, 'Do what you can for him/ On the other occasions, or some of them, Captain Budulph would bring the messages to me, to go over and see Mr. Skinner, and many times, when I would get to St. Marys, Mr. Becker would get in the car and go out with me to Mr. Skinner's; and after I had made a few calls Mr. Becker realized that Mr. Skinner was in a bad condition, and told me to come as often as necessary and do everything possible, and I did make several trips without any order at all, after Mr. Becker had requested me to. . . I went at the request of Mr. Becker, and also procured the services of Dr. Freeman at the request of Mr. Becker and feel that Mr. Becker owes for the amount of my services. As a matter of fact, I would not have gone without Mr. Becker asking me, and he was the man in authority, and Mr. Skinner was living on the place of Mr. Becker, from what I understood, and naturally I held Becker for it.”

Captain F. T. Budulph, for the plaintiff, testified as follows: “Mr."Becker came to me to get me to go for Dr. Humphries several times, dozen or more. He first came and asked me to go and get Dr. Humphries as quick as .1 could. I told him Mr. Becker sent for him to go out to see Mr. Skinner. I delivered the message to Dr. Humphries every time. He would tell me to tell Dr. Humphries to come, and then at other times I would get a telephone message when he was in Scottsville. Sometimes I would get a message from Scottsville, then sometimes Mr. Becker would tell me. The different times I went for Dr. Humphries I would go down and tell him, ‘ Doctor, I have come for you, Mr. Skinner is worse/ or, ‘they want you to come and see him.’ I say the first time I went Mr. Becker asked me to go personally. He told me personally two or three times after that.” It appears that Skinner was living upon the defendant’s farm, but was not an employee. W. A. Williams, for the plaintiff, testified: “At the time Mr. Skinner was living there Mr. Becker told me at any time Mr. Skinner wanted anything to go and get it, and on one occasion I come and got Dr. Humphries. He said, if they needed a doctor, to come and get him, and I did come and got Dr. Humphries.” The evidence introduced by the defendant was in conflict in some respects with that introduced by the plaintiff, but the defendant ■testified in part as follows: “So far as I know, Mr. Skinner was an entire stranger to Dr. Humphries. Dr. Humphries did not know anything about Skinner, so far as [I am] advised. His first visit to Skinner was at my request. I went out with him. After I did that, I made arrangements with Captain Rudulph several times to go after him. I made arrangements with whoever was in charge to take him out on the motor-cár. I oftentimes met Dr. Humphries at the dock and went out with him. The fact is I Avent out with him practically every time. I used to go out there two or three times a day.”

Since, in determining whether the verdict was supported, this court is bound to give effect to that version of the evidence most favorable to the plaintiff which the jury was authorized to adopt, it is unnecessary to set forth in detail the other evidence introduced by the defendant. It will be observed that there was no relation between the defendant and the patient such as would raise a legal obligation on the defendant’s part to procure and pay for the services of the physician for him. The preponderance of authority is to the effect that a mere request by one person to a physician to render services to another, to whom the person making the request is under no obligation to supply the same, will not raise an implied promise in favor of the physician to pay for the services when rendered. A humane policy encourages the summoning by others of medical aid for those who may be stricken and unable to act for themselves. It would be quite easy in such a case for the physician to inquire if the person making 'the request intends to become personally bound; and when he fails to do so, he has no one to blame except himself for having acted upon a mere request without an assurance that the party making it intends to incur a personal liability. The physician should remember that persons commonly call for medical aid for the sick solely out of a spirit of kindness, irrespective of relationship, and without any expectation of becoming personally responsible. But this is not a case of a mere request for the rendition of services and a compliance therewith by the physician, and the case is different from Norton v. Rourke, 130 Ga. 600 (61 S. E. 478, 124 Am. St. Rep. 187, 18 L. R. A. (N. S.) 173), since in that ease the physician was called to one who had become suddenly ill because of an injury, and there was not, as here, a continuation of the services upon further and repeated requests, and, in most instances, with the defendant present assuming charge of what was done. Another physician had been in charge of the case, but had to go away, and thereupon the defendant brought in the plaintiff. Subsequently, when the patient was seen to be in a bad condition, the defendant told the plaintiff to get a nurse, which was done, and he paid for her services. It is true that the Supreme Court, in its opinion in Norton v. Rourke, supra, cites with approval the case of Boyd v. Sappington, 4 Watts (Penn.), 247, where it is held that a request by a father to a physician to attend his son, then of full age, and sick at his father’s house, raised no implied promise on the part of the father to pay for the services rendered, and also referred to other cases to the same general effect. Mr. Chief Justice Eish, in the course of his opinion, however, said that the doctrine was well stated in 22 Am. & Eng. Encyc. of Law (2d ed.), 790; and, turning to this reference, we find the following statement: “When a person requests a physician to perform services for a patient, the law does not raise an implied promise to pay the reasonable value of the services so rendered, unless the relation of the person making the request to the patient is such as raises the legal obligation on his part to call in a physician and pay for his services. Whether or not the implied liability is created must depend largely on the circumstances of the particular cáse.” See also, in this connection, Raoul v. Newman, 59 Ga. 409; 21 R. C. L. 412; 30 Cyc. 1597; Spelman v. Gold Coin Mining & Milling Co., 26 Mont. 76 (66 Pac. 597, 55 L. R. A. 640, 91 Am. St. Rep. 402); McClenahan v. Keys, 188 Cal. 574 (206 PaC. 454); McGuire v. Hughes, 208 N. Y. 516 (46 L. R. A. (N. S.), 577, Ann. Cas. 1914 C, 585).

The true rule in a case of this sort seems to be that the plaintiff could not recover without showing affirmatively either that the services were rendered under an express promise on the part of the defendant to pay therefor, or that the surrounding circumstances were such as plainly to indicate that it was the intention of both parties that the defendant would be liable. Compare O’Kelley v. Faulkner, 92 Ga. 521 (1) (17 S. E. 847); Phinazee v. Bunn, 123 Ga. 230 (1) (51 S. E. 300). While the evidence failed to show an express promise, the other circumstances • as disclosed by the evidence were sufficient to authorize an inference of an intention by the parties, at the time, that the services were to be furnished on the defendant’s credit; and we can not hold that a finding for the plaintiff was unwarranted. The defendant has not sought to exclude the item represented by the charge of the consulting physician, but has dealt with the case as if this item should stand or fall with the others set forth in the account. Therefore, in ruling that the verdict was authorized, we have merely decided the question raised by the plaintiff in error as to whether under the evidence the plaintiff was entitled to recover at all, any other ground of attack, going merely to some part of the verdict, being waived by the failure of the plaintiff in error to urge it. We have examined the special grounds of the motion for a new trial, .and are of the opinion that each of them is without merit. The court did not err in overruling the motion.

Judgment affirmed.

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


text:
    16322.
    BROWN GUANO COMPANY v. BRIDGES.
    1. If executors, empowered by will to sell lands of tlie decedent, sell'them for tbe purpose of division, the proceeds are personalty, unimpressed with the character of real estate, and therefore are subject to garnishment.
    2. The trial judge, sitting as court and jury, was authorized to find that the paper relied upon by the claimant, when considered in connection with the extraneous evidence with reference thereto, constituted an equitable assignment of the assignor’s legacy or interest in his father’s estate, provided it was supported .by a. consideration.
    3. But where a claimant in garnishment relies on what purports to be a mere equitable assignment of a fund, transferred as collateral security for a pre-existing debt, the debt will not of itself afford a consideration for the assignment, or raise any presumption of such consideration, but the burden is upon the assignee to show a valuable consideration for the transfer. No consideration for the assignment being made to appear in the instant case, the finding and judgment in favor of the assignee, as claimant, was without evidence to support it.
    Decided November 19, 1925.
    Complaint; from city court of Dawson—Judge Edwards. February 19, 1925.
    J. M. Bridges died testate in February, 1923. R. H. Jennings and J. W. Bridges were named executors of his will and both qualified. They were empowered by the will to sell any and all of his property at public or private sale as they might deem best without any order of any court. At the time of the testator’s death, R. L. Bridges, one of the legatees, was indebted to Brown Guano Company on a note, upon which the company filed suit against him to the January term, 1924, of the city court of Dawson, and obtained judgment at the following April term for approximately seven hundred dollars. During the pendency of this action the plaintiff therein sued out a garnishment and caused service thereof to be made on the executors respectively on March 22 and 27, 1924. The executors on March 29 obtained an extension of the time in which to respond and did not answer finally until January 10, 1925. Their answer as then made averred that they had reduced the assets of the estate to cash and that the net amount of R. L. Bridges’s share was $977, but that this was claimed by C. E. Bridges under a transfer from R. L. Bridges “which was presented to the executors prior to the service upon them of any garnishment, which transfer was accepted 'by them in writing.” The answer further alleged that the amount in question with the exception of a few dollars was derived from the sale of real estate and therefore was not subject to garnishment. Brown Gnano Company traversed the answer except as to the amount. C. E. Bridges filed a claim to the fund and was formally made a party to the garnishment proceedings. The issues thus formed were submitted to the court without a jury,, and after hearing the evidence the presiding judge awarded the fund to C. E. Bridges, and Brown Guano Company excepted. The writing between R. L. Bridges and C. E. Bridges which formed the basis of the latter’s claim was introduced in evidence and, including the purported acceptance, was as follows:
    “To the Executors of the Estate of J. M. Bridges, deceased:
    “You are hereby authorized to pay C. E. Bridges the sum of $3258.76, principal, with interest, the same to be paid on or before December 1st, 1924, and to charge the same to my distributive share as an heir at law of the estate of J. M. Bridges. It being agreed that his receipt for the amount stated shall operate as my voucher for same. This the 11th day of October, 1923.
    (Signed) “R. L. Bridges.”
    “Attest: C. D. Cocke, N. P. T. C. Ga.
    “Accepted, in so far as our power and authority as executors of the estate of J. M. Bridges, deceased, authorizes the same. This 11th. day of October, 1923.
    (Signed) “R. H. Jennings.
    “J. W. Bridges.
    “Eor the executors.”
    . G-. E. Bridges, the claimant testified, “I am the claimant in this ease. I claim the funds now in the hands of the executors of the estate of J. M. Bridges, deceased, by reason of this order (witness identifies order) which was given to me and signed by R. L. Bridges, dated October 11, 1923. This order was given me by R. L. Bridges on the date which it bears. I took this order in good faith from R. L. Bridges, and gave value received for the same. I did not know at the time I took this order that R. L. Bridges owed any other debts. He owed me the sum of $3,258.76 at the time he gave me this order. He owed me this sum for supplies and guano which I had furnished him during the years 1922 and 1923. He was unable to pay me, and he gave me this order on the executors, to secure me in what he owed me. R. H. Jennings, one of the executors, signed the acceptance on the order at the time it was given. J. W. Bridges, the other executor, knew about the order, and promised to sign it, but did not sign it until some time after the order was given. He did sign the order long before the executors sold the land belonging to the J. M. Bridges estate, and he signed the same before Brown Guano Company obtained their judgment. I took this order to secure me in what R. L. Bridges owed me. He still owes me the amount set out in said order, with the exception of about $1,100 which was paid me in a land transaction, which amount I allowed him in the trade. I still hold against him the evidences of the debt, which I had at the time the order was given me. I knew at the time I took the order that the executors of the estate of J. M. Bridges did not have on hand any money belonging to R. L. Bridges. The only thing they had at the time, was R. L. Bridges’ interest in the real estate. I presented this order to R. H. Jennings, one of the executors, at the time it was given me, and he signed the acceptance on the same. I put this order on record March 28, 1924. I did not put it on record before that time because I did not think it was necessary. J. W. Bridges, the other executor of the estate of J. M. Bridges, did not sign the acceptance on the order until after the order was placed of record. He knew about the order, however, before that time. R. L. Bridges is my brother. My father, J. M. Bridges, died February 28, 1923. I knew at the time I took the order that R. H. Jennings and J. W. Bridges were both qualified as executors of the estate of J. M. Bridges, but did not know that it was necessary for both of them to sign the acceptance.”
    R. H. Jennings, one of the executors, testified that at the time he signed the order or writing in question the executors did not have on hand any funds or money belonging to R. L. Bridges, as they had already distributed all funds that had come into their hands from the sale of the personalty; that they never at any time had on hand the sum of $3,258.76 belonging to him, and that his interest in the estate, both real and personal, above his indebtedness to the estate, did not amount to that much. The entire amount which the answer admitted to be due ($977), with the exception of a few dollars, was derived from the. sale of real estate, the proceeds of which were not collected until during October and later in the year of 1924. There was no other material evidence.

      B. B. Jones, for plaintiff.
    IP. E. Gwt, for defendant.
   Bell, J.

(After stating the foregoing facts). The defendant in error insists that the judgment was right because the fund in controversy, having been derived from the sale of real estate, was to be treated as realty, and as such was not subject to garnishment. We are unable to agree that money derived from the sale of real estate by executors should be considered different in character from any other money in their hands, where the question is merely whether it is subject to garnishment by a legatee’s creditors. On the theory of equitable conversion, the proceeds of real estate sold under a power of sale conferred by the will of a decedent are usually regarded as personal assets of the estate. 11 R. C. L. 120, and cases cited. “Where a testator directs that real estate shall be converted into personalty, or vice versa, the direction impresses the property with the character of that into which it is to be converted, from the date upon which the change is to be made.” Civil Code (1910), § 3913. It was the duty of the executors who were the garnishees to answer what property, money, or effects they had in their hands belonging to the defendant at the date of the service of the garnishment and also what property, money, or effects of the defendant had come into their hands at any time from the date of the service to the date of the answer. Civil Code (1910), §§ 5271, ,5272. The real estate had been converted into money and was personalty at the time the garnishees made their answer. It seems clear that the fund was subject to the process of garnishment. See, in this connection, Gammage v. Perry, 29 Ga. App. 427 (116 S. E. 126).

The next question that presents itself is whether the writing, provided it was supported by a consideration, constituted either a legal or equitable assignment of the fund. Any language, however informal, will be sufficient to constitute a legal assignment, if it shows the intention of the owner of the right to transfer it instantly, so that it will be the property of the transferee. Southern Mutual Life Ins. Co. v. Durdin, 132 Ga. 495 (1) (64 S. E. 264, 131 Am. St. Rep. 210). It is further true, however, that “An instrument, other than a draft, purporting to assign a sum of money to be paid out of a fund claimed to be in the hands of another, without describing the identical money intended to be conveyed, will not of itself convey legal title to any part of the fund which in fact may be in the hands of such other person.” W. & A. R. Co. v. Union Investment Co., 128 Ga. 74 (1) (57 S. E. 100). And measuring it by this rule, we are of the opinion that the writing in question did not operate to convey legal title to the fund in controversy and therefore did not constitute a legal assignment. See also Baer v. English, 84 Ga. 403 (1) (11 S. E. 453, 20 Am. St. Rep. 372). Did it amount to an equitable assignment? In the case of Jones v. Glover, 93 Ga. 484 (1) (21 S. E. 50), it is said, “In order to infer an equitable assignment, such facts and circumstances must appear, as would not only raise an equity between the assignor and the assignee, but show that the parties contemplated an immediate change of ownership with respect to the particular fund in question, not a change of ownership when the fund should be collected or realized, but at the time of the transaction relied upon to constitute the assignment.”

We are of the opinion that it'sufficiently appears from the extraneous evidence and the writing itself that it was the intention of the parties in the present case to make an immediate change of ownership with respect to the fund in question. It is not necessary that the fund attempted to be assigned shall be in actual existence at the time, for it is well settled that it is sufficient if it “exists potentially.” It is possible to make an equitable assignment in writing even of money yet to become due. Walton v. Horkan, 112 Ga. 814 (38 S. E. 105, 81 Am. St. Rep. 77). The instrument in question does not fail as an equitable assignment merely because the amount of money therein stated was in excess of the drawer’s legacy. Ison Co. v. Atlantic Coast Line R. Co., 17 Ga. App. 459 (2) (87 S. E. 754). The interest of a legatee in an estate is assignable, under the law of this State. Civil Code (1910), § 3654; Newsome v. Cogburn, 30 Ga. 291; Wilcoxon v. Harrison, 32 Ga. 480; Pylant v. Burns, 153 Ga. 529 (112 S. E. 455, 28 A. L. R. 423). The instrument not being a draft, and the proceedings being in garnishment, it was not necessary for the executors to consent thereto, even if the assignment had been of a part of the fund only. Few v. Pou, 32 Ga. App. 620, 624 (124 S. E. 372); Western & Atlantic R. Co. v. Union Investment Co., 128 Ga. 74 (57 S. E. 100); Western Union Tel. Co. v. Ryan, 126 Ga. 191 (2) (55 S. E. 21). The rule would be otherwise as to a partial assignment sought to be enforced in a common-law action against the debtor or holder of the fund. Rivers v. Wright, 117 Ga. 81 (43 S. E. 499). Under the facts of this case it was not necessary for the executors to accept or assent to the assignment, and we therefore need not determine the sufficiency of the effect of their purported assent as made. Southern Ry. Co. v. Pitner, 17 Ga. App. 451 (87 S. E. 754). We conclude that the trial judge, acting as court and jury, was authorized to find that the instrument in question, when considered in connection with the extraneous evidence with reference thereto, was an equitable assignment of the assignor’s interest in his father’s estate. See, in this connection, Brown v. Southern Ry. Co., 140 Ga. 539 (79 S. E. 152).

But the above conclusion as to the validity of the instrument as an equitable assignment has been reached on the assumption that it was supported by a consideration. The claimant assignee testified that he had taken the instrument to secure him in what his brother, the assignor, owed him and that the debt was still existing. In Few v. Pou, supra, this court said, “Where therefore, a claimant in garnishment relies upon what amounts to a mere equitable assignment of rents, transferred as collateral security for a pre-existing debt, such existing debt will not of itself afford any presumption as to a valuable consideration supporting the assignment, but the burden is upon the assignee to show some valuable consideration to support the transfer.” The claimant testified also, in general terms, that he paid value received for the assignment; but when his entire testimony is considered together and construed most strongly, or even reasonably, against him, it appears that what he considered as “value received” was the existing debt which the assignment had been taken to secure. And the mere fact that the fund referred to in the assignment was to be paid on a date in the future would not be sufficient to show an extension of the maturity of the indebtedness secured thereby, although such extension, if made, might of itself have amounted to a consideration. As to this feature of the case we are of the opinion that the claimant failed to show any consideration for the assignment, and that, therefore, the court erred in awarding the fund to him.

Judgment reversed.

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


text:
    16508.
    BOLTON v. COLUMBIA CASUALTY COMPANY.
    In all claims for compensation for hernia resulting from injury by accident, arising out of and in the course of the employment, it must be definitely proved, among other things, that there was an injury resulting in the hernia. The statements of the employee in this case, tending to show that he had suffered an injury and that the injury resulted in hernia, having been made some time after the alleged injury, and being merely narrative and descriptive of something which had fully taken place and become a thing of the past, had no probative value in establishing the fact that he was injured, and the industrial commission properly held that such statements or declarations were hearsay and no part of the res gestee. There being no other evidence to prove that the employee was injured, it did not appear that his hernia, though proved to exist, was the result of an injury. The industrial commission did not err in refusing the claim, and the superior court properly denied the appeal.
    Decided November 19, 1925.
    Appeal; from Chatham superior court—Judge Meldrim. April 6, 1925.
    Earl C. Bolton was an employee of I. Epstein & Brother Company of Savannah. On Saturday night, October 6, 1923, he became ill, and on the following day he underwent an operation. He subsequently died, and his mother, Mrs. Blanche C. Bolton, filed with the industrial commission a claim against his employer, for compensation and for the recovery of funeral, hospital, and medical expenses, under the workmen’s compensation act. Her contention was that he had suffered a hernia, and that it arose out of and in the course of his employment, and that his death was the result thereof. The claim was refused, and an appeal was taken to the superior court. The appeal was denied, and the claimant excepted. There was ample evidence by the physicians to show that the employee had hernia, and that it was of "very recent” origin. The case turns upon the question whether there was sufficient evidence to show that it arose out of and in the course of the employment. There was proof that the employee’s duties required him to place bolts of cloth on a table, 'for inspection by his employer’s customers; that the bolts weighed from eight to twelve pounds; and that it was not unusual for him to lift as many as four bolts at a' time and to carry them a distance of thirty feet. It was also shown that he was at his work on the day on which, it was alleged, the injury occurred. Mr. J. P. Collins, the employee’s immediate superior, testified that the decedent, while going to his home in company with Mr. Collins, at the conclusion of the day’s work, complained to him of a tight feeling in his groin, and associated it with the lifting of the bolts of cloth during the day. But this witness further testified: “All the time he was lifting the serge and putting it in the rack he didn’t say anything to me about having a pain or suffering in any way.” There was no evidence as to the employee’s having suffered any accident, unless in the declarations made by him as referred to herein. The testimony of the employee’s parents was to the effect that he was unable to sleep that night, and a physician, Dr. Jones, was called to see him about three o’clock'a. m. At that time he was suffering pain and gave Dr. Jones the history of his case. The evidence showed that he did not have hernia on April 25, 1921, when he was examined by members of the medical corps of the national guard, and his parents testified that he had never complained of any such trouble prior to the particular occasion in question. Dr. Jones testified as follows: “I was called about three o’clock in the morning.' The man was suffering with pain in the right inguinal region, and from the history of the case he told me on Saturday afternoon he was lifting some pieces of cloth for I. Epstein & Company, and that on picking up, I think he said three bolts of serge cloth, he felt a spart [sharp?] pain in the right side, low down. He carried the cloth on and put it down, and the pain still continued, and he immediately went back in some place and examined himself, and noticed a protrusion down in the right inguinal region. I think he said he got a suspensory and placed it on and worked on till closing time, and went home, and the pain continued and gradually got worse. He could not sleep, and he called me about three o’clock, and when I saw him he had this protrusion on the right side, and was suffering quite a bit. No temperature, pulse was about something about 80 or possibly 86. On examination the hernia was somewhat hard to reduce, and he was suffering quite a little pain,_ and I found it was necessary for an operation right away. The man did not say whether he had told them about it at the time or not. . . The patient told me this himself, and said it happened that Saturday afternoon.” The following statements are made by the industrial commission in the report of its findings of fact: “Mr. Bolton [the employee] stated to Mr. Collins late on Saturday afternoon that he had a tight feeling in the groin. He did not complain of any injury, and no report was made, or nothing was said of the injury. . . The only other evidence that we have of any injury is the hearsay testimony of the attending physician, who narrates how the accident occurred, in the language of the claimant [meaning the employee].” “We have no record of an accident. The only testimony is the testimony of the dead claimant [deceased employee] as he narrated the accident to the doctors, and this was done twelve or fifteen hours after the accident occurred, and would constitute hearsay testimony alone. . . There is no evidence of an accident which is proven by any testimony of any character except hearsay.” The claimant contends that the commission erred in refusing to consider as evidence the declarations of the employee as testified to by the physician, and that therefore the judgment of the commission as made was not a legal termination of the case.

      H. P. Cobb, for plaintiff.

      Ralph G. Sims, for defendant.
   Bell, J.

(After stating the foregoing facts.) In Western & Atlantic Railroad Co. v. Beason, 112 Ga. 553 (2) (37 S. E. 863), it was held that the real test as to whether declarations are admissible as a part of the res gestse is, were they “a part of the occurrence to which they relate, or were they a mere narrative concerning something which had fully taken place and had therefore become a thing of the past.” In Atlanta, K. & N. R. Co. v. Gardner, 122 Ga. 82 (11) (49 S. E. 818), the Supreme Court held that on the trial of an action for damages for personal injuries, “complaints made by the plaintiff to her attending physician of pains in designated portions of her body were not admissible in evidence in her favor, unless made under such circumstances as to be equivalent to spontaneous and involuntary exclamations or outcries, groans, convulsive movements, and other physical manifestations of present pain and suffering.” (Italics ours.) See also Southern Ry. Co. v. Brown, 126 Ga. 1 (2) (54 S. E. 911); Georgia Ry. & Electric Co. v. Gilleland, 133 Ga. 621 (2) (66 S. E. 944). In the instant case the testimony of physicians as to the employee’s condition and to the fact that he was suffering from hernia, and that it was of recent origin, was not hearsay, and we do not understand that the commission so denominated it. What the commission did hold was that the statements made by the employee to Dr. Jones, to the effect that he had suffered, an injury in a particular way several hours before, was hearsay, and in this the commission was right. They were merely narrative and descriptive of an alleged past occurrence, of which they were in no sense a part. The same is also true of what the employee said to Collins. Furthermore, there should be other proof of the main or principal fact (which in the instant case was the alleged accident or injury while the employee was handling the cloth), before the declaration can be considered as a part of such fact. “It is proceeding in a circle to use the declarations as proof of facts necessary to constitute the declarations a part of the res gestae.” 22 Corpus Juris, 449, § 536.

Counsel for plaintiff in error says that “Just as every wrong has its remedy in the law, every fact should be capable of some legal proof.” But in the juridical sense the court can not know that the fact exists until there is proof of it. The statement of counsel would illogically assume its existence in order to let in the proof, whereas the proof should come first. Otherwise, there is no fact to deal with. Hearsay is without probative value. Eastlick v. Southern Ry. Co., 116 Ga. 48 (42 S. E. 499).

It is necessary, before compensation may be allowed for hernia, that the claimant definitely prove, among other things, that there was an injury which resulted therein. See paragraph e, § 2, of the workmen’s compensation act; Ga. L. 1920, p. 167. There was no evidence in this case, outside of hearsay, that the employee suffered any injury whatever. The industrial commission committed no error in its rulings or in rendering the judgment complained of. Indeed, its findings appear to have been demanded under the record. It is not necessary to determine at this time what would constitute an injury as distinguished from the hernia itself, since, in the present case, there was no competent evidence of anything in the nature of such injury. The judge of the superior court properly denied the appeal.

Judgment affirmed.

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


text:
    16522.
    HARGRETT, trustee, v. JOLLEY.
    1. Where a bill of exceptions is duly and regularly certified by the presiding judge according to law, an additional and contradictory certificate following the one required by statute will be ignored and will afford no cause for dismissing the bill.
    2. Where, pending a civil cause, the plaintiff was adjudicated a bankrupt, and where, after an order had been passed making his purported trustee in bankruptcy a party plaintiff, it was made to appear, without dispute, that the trustee, though once duly appointed and commissioned, had ceased to be such, having been discharged even prior to the order making him a party, there was no error, as to the purported trustee, in sustaining a plea setting up such facts, nor in dismissing the action.
    3. Under the provisions of the act creating the city court of Carrollton (Ga. L. 1897, p. 438, § 14), where no demand for a jury is made in writing at the appearance term, the presiding judge is empowered to try the issues of fact in civil cases without the intervention of a jury. Although it is recited in the bill of exceptions that a jury had been duly stricken, it does not appear that any demand for a jury had been made in the terms of the act, and it can not be held that the trial judge erred in passing upon the issues formed by the plea, without the verdict of a jury.
    4. The court did not err in overruling the motion for a continuance.
    Decided November 19, 1925.
    Complaint; from city court of Carrollton—-Judge Hood. March 10, 1925.

      G. A. Christian, S. Holderness, for plaintiff.

      Boykin & Boykin, for defendant.
   Bell, J.

W. S. Cobb brought a suit on contract in the city court of Carrollton against R. A. Jolley. The ease has been before this court on two previous occasions. See 26 Ga. App. 123 (105 5. E. 630), 30 Ga. App. 48 (116 S. E. 553). Pending the suit the plaintiff was adjudicated a bankrupt, and W. T. Hargrett Jr. was appointed trustee in bankruptcy. At the March term, 1925, of the trial court, the following order was passed, making Hargrett as such trustee a party plaintiff: “W. S. Cobb, the plaintiff in the above-stated matter, having been adjudicated a bankrupt, and W. T. Hargrett Jr. having been appointed and qualified as trustee of said bankrupt, upon motion of plaintiff’s counsel said W. T. Hargrett Jr. is made party plaintiff in said matter.” The defendant’s counsel thereupon filed a special plea, referred to in the briefs in this court as a plea in abatement, admitting that Cobb had been adjudicated a bankrupt, but denying that Hargrett is now “the acting qualified trustee,” and alleging that the bankrupt estate “has been fully administered and closed,” and “that the trustee has [been] discharged, and there is no trustee . . . nor qualified party plaintiff to this case, and therefore the case should be dismissed and the ‘ plea sustained.” This plea was “allowed” by the presiding judge, over the objection of counsel for plaintiff that it set forth no defense and showed no reason for the abatement of the suit. The defendant’s counsel submitted documentary evidence showing, without dispute, that Hargrett had been discharged as trustee in bankruptcy on July 25, 1923, before the order had been passed making him a party to the case. Counsel for plaintiff stated in his place that he had not known until that moment that the trustee in bankruptcy was discharged, and moved for a continuance in order that he might procure the appointment of a new trustee to prosecute the action. The court overruled the motion to continue, and rendered a judgment sustaining the plea and dismissing the suit. Exceptions have been brought by “W. T. Hargrett, trustee of W. S. Cobb,” as plaintiff in error, complaining of these rulings. There are no exceptions by W. S. Cobb, the original plaintiff. The judge certified the bill of exceptions in the usual form, and afterwards made a supplementary certificate, which the defendant in error contends contradicted the first certificate. Because of this alleged contradiction the defendant in error has moved to dismiss the bill of exceptions.

There is no merit in the motion to dismiss the bill of exceptions. See Stilwell v. Watkins, 135 Ga. 149 (2) (68 S. E. 1114); Usher v. Harrelson, 13 Ga. App. 118 (1) (78 S. E. 852).

First, we will assume that the order making the alleged trustee a party plaintiff not only did not in terms strike the original plaintiff, but could not be construed as impliedly having such effect, and, therefore, that Hargrett as trustee was not substituted in lieu of Cobb, the original suitor, but was brought in as an additional party plaintiff. In this view, it was probably error to allow the plea or to dismiss the suit, since Cobb continued to be a plaintiff notwithstanding the trustee was joined as plaintiff with him. “A trustee in bankruptcy may, but need not, intervene as plaintiff in a suit brought by the bankrupt before the adjudication in bankruptcy. If no trustee is appointed, or if the bankrupt court does not consider it to the interest of the estate to permit the trustee to prosecute the suit previously brought by the bankrupt, the action does not thereby- abate, nor is the bankrupt’s debtor discharged from liability in the pending action. . . If the failure to elect or appoint a trustee in bankruptcy in any way injured the rights of creditors, it did not discharge the bankrupt’s debtor.” Griffin v. Mutual Life Ins. Co., 119 Ga. 664 (1, 2, 5) (46 S. E. 870). See also Gate City Cotton Mills v. Cherokee Mills, 128 Ga. 170 (3) (57 S. E. 320); Miller v. Smith, 136 Ga. 117 (1) (70 S. E. 887); Manor v. Clark-Stewart Co., 33 Ga. App. 424 (126 S. E. 871). The fact that the trustee had been discharged was a good and sufficient reason for stopping or dismissing the suit as to him, but would not have afforded cause for a general order of dismissal, affecting also the original plaintiff Cobb, who had never been stricken. We conclude, therefore, that the action taken by the court, while perhaps wrong as to the original plaintiff, was right as to the new and additional plaintiff who was made a party in the purported capacity of trustee. The right of the latter to proceed in the case was denied by the plea, and was conclusively negatived by the evidence in support thereof. If the rulings of the court had been excepted to by Cobb, a very different case would have been presented, but since we are of the opinion that the case was properly disposed of in so far as Hargrett, or Hargrett as trustee, is concerned, and since he is the only person complaining, an affirmance of the judgment of the lower court seems to be the only logical result. After Hargrett’s commission was terminated by the court which had appointed him, he had no authority to come into the case as a party thereto, and, so far as he was concerned, there was no error in striking him as a party or in dismissing the case as to him as soon as it appeared that he was not trustee at the time of the order making him a party, 'and that such order had been inadvertently granted. See Roberts v. Kite, 33 Ga. App. 91 (125 S. E. 719). If the proper construction of the order making Hargrett a party should not be as we have assumed it to be, but if, on the other hand, the effect of such order was to entirely eliminate Cobb as a party plaintiff and to substitute Hargrett as trustee in his stead, it was then proper to hold that there was no party plaintiff, when it appeared that the trustee had been discharged before the passing of the order making him a party, and in that case the suit was properly dismissed for want of a party plaintiff.

But the plaintiff in error insists that the court erred in sustaining the plea and dismissing the suit without the verdict of a jury (a jury having been selected), even though such verdict might have been directed. The bill of exceptions recites that “Plaintiff in error insists that while this [the certified copy of the discharge of Hargrett as trustee which was in evidence], as a matter of law, would have sustained the plea, yet the same was a question for the jury, and the court should have directed the jury to return a verdict, instead of passing an order sustaining the plea and dismissing the case without the intervention of a jury, a jury qualified to try such case having been stricken.”

Section 14 of the act approved August 21, 1897, creating the city court of Carrollton (Ga. L. 1897, p. 438) provides that “The judge of said city court shall have the power and authority to hear and determine all civil cases in said city court, and render judgment therein, without a jury; provided, that either party shall be entitled to a trial by jury upon entering a demand therefor in writing on or before the call of the appearance docket at the appearance term, when by law he is entitled to a jury trial.” Although the bill of exceptions shows that a jury had been stricken, it does not appear that any demand for a trial by jury was made within the terms of the act creating the court, nor, therefore, that the court committed error in disposing of the issue without the intervention of a jury. Twine v. Slaton, 17 Ga. App, 691 (3) (87 S. E. 1096).

There was no error in overruling the motion for a continuance. Even though the attorney for the plaintiff in error had not known of the discharge of the trustee, the trustee himself presumably knew thereof, and it is only in his behalf that the motion appears to have been made; at least no other person is excepting to-the overruling of the motion. And, furthermore, since it indisputably appears that he had ceased to be the trustee at the time the motion for continuance was made, it was of no concern to Mm whether the ease should be continued in order that another might be appointed, or that he might be reappointed, for the purpose of prosecuting the suit. It was not suggested that the evidence to the effect that he had been discharged could possibly be refuted, and the motion to continue does not appear to have been made for that purpose.

Judgment affirmed.

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


text:
    16604.
    Blount v. Dunlap.
   Bell, J.

1. This being a claim case involving the title to certain household goods and other personal effects, levied on as the property of the defendant in attachment and claimed by his wife, the property not having been found in the defendant’s possession, the burden of proof was upon the plaintiff in attachment. Civil Code (1910), § 5170.

2. Where it appears that a husband and wife were living together during a certain period and were using certain household goods in the family domicile, and the wife returned no property for taxation, but the husband, in the county of their residence and during such period, returned for taxation certain property described in general terms as household goods, and where it does not appear that he owned or was in possession of any other such property, the inference would be authorized that the return, as made by him had reference to the household goods in the fam- . ily domicile. That the property was returned by the husband and that it was not returned by the wife were circumstances which could be considered by the jury on the trial of the claim. McLendon v. Dunlap Hdw. Co., 3 Ga. App. 206 (59 S. E. 718) ; Smith v. Haire, 58 Ga. 446 (1) ; Morris v. Winkles, 88 Ga. 717 (1) (15 S. E. 747); Dozier v. McWhorter, 117 Ga. 786 (4) (45 S. E. 61).

3. Possession by the husband with the wife, in the family domicile, is presumably his possession, and possession is evidence of ownership. Primrose v. Browning, 59 Ga. 70 (1) ; Broome v. Davis, 87 Ga. 584 (1) (13 S. E. 749); Garrard v. Hull, 92 Ga. 787 (2) (20 S. E. 357) ; Austin v. Southern Home Bldg. & Loan Asso., 122 Ga. 439 (4) (50 S. E. 382); Smith v. Berman, 8 Ga. App. 262 (2) (68 S. E. 1014) ; Young v. State, 22 Ga. App. 111 (2) (95 S. E. 478). Proof that the various articles of property were the goods of the household and had been used as such until they were packed and stored for safekeeping (in October, 1923) when the husband with his family removed to another State, together with evidence that the property had been returned by the husband for taxation in the years 1923 and 1924, and that it had not been returned by the wife, made out a prima facie case of title in the husband at the time of the seizure in August, 1924, and, in the absence of evidence demanding a eontrai'y conclusion, was sufficient to authorize a finding in favor of the plaintiff in attachment on the issue arising on the claim.

i. It-can not be said, as a matter of law, that the inferences deducible from the facts above referred to were conclusively explained and rebutted, where the only testimony which in any way tended in that direction was that of the claimant herself, and where there were circumstances which the jury could weigh in determining the credit to be given to her testimony. She testified that although she and her husband had been married and living together for more than twenty years, “he never .did own any household goods, and does not own any now.” While she testified that some of the goods had been purchased with funds given to her by her husband, that some had been bought with money which she had earned, and that some had been acquired in other ways, she accounted specifically for her title to only two or three of the many articles in question, and only knew “in-a general'way” that the others were hers. There was no effort to' show why the property had not been returned by herself for taxation. She was directly interested as a party to the case. Although intérest alone would probably ■not have been enough to authorize the jury to discredit her testimony, they could consider it with the other circumstances; and, in view of all the circumstances as just enumerated, this court can not hold that the jury were bound to find in accordance with her testimony. Whiddon v. Hall, 155 Ga. 570 (6) (118 S. E. 347); Redd v. Lathem, 32 Ga. App. 214 (1) (123 S. E. 175) ; Blackwell v. Dannenberg Co., 32 Ga. App. 307 (2, 3) (123 S. E. 179).

Decided November 19, 1925.

Claim; from Bibb superior court—Judge Malcolm D. Jones. May 25, 1925.

R. D. Feagin, 11. B. Bell, for plaintiff in error.

John J. McCreary, Wallace Miller, contra.

5. The verdict found in favor of the plaintiff in fi. fa. was authorized. The court did not err in overruling the motion for a new trial, based upon the usual general grounds only.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    15804.
    Fulton National Bank v. Redmond.
    Decided December 15, 1925.
    Mortgage foreclosure; from Fulton superior court—Judge Ellis. May 2, 1934.
   Broyles, C. J.

Under the ruling of the Supreme Court in this case (161 Ga. —, 130 S. E. 568), the trial court erred in admitting evidence as complained of in the bill of exceptions, and, under the facts of the ease, the verdict and judgment in favor of the defendant were contrary to law and the legal evidence. In compliance with this ruling it is ordered that the former judgment of this court (33 Ga. App. 122) be vacated, and the judgment below is

Reversed.

Luke and Bloodworth, JJ., concur.

Little, Powell, Smith & Goldstein, William Matthews, for plaintiff. McDaniel & Neely, for defendant.


author: Luke, J.

text:
    16007. 16008. 16011.
    Southern Surety Co. v. Dawes. Southern Surety Co. v. Lehigh Portland Cement Co. Southern Surety Co. v. Sciple et al.

    Decided December 15, 1925.
    Complaint; from city court of Thomasville—Judge Hammond. September 29, 1924.

      T. S. Hawes, for plaintiff in error.

      Titus & Delele, H. H. Merry, L. S. Moore, contra.
   Luke, J.

It having been made to appear to this court that on May 1, 1925, these cases were dismissed by the plaintiff in the trial court, and that all costs have been paid, the motion of the defendants in error, that the bills of exceptions be dismissed, is granted.

Writs of error dismissed.

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


text:
    16009. 16010.
    Southern Surety Co. v. Watt et al. Southern Surety Co. v. Williams.
    Decided December 15, 1925.
    Court and counsel the same as above.
   Luke, J.

Under the rulings of the Supreme Court in these cases (So. Surety Co. v. Dawes, 161 Ga. 207, 130 S. E. 577), in answer to certified questions, the trial court properly struck the defendant’s plea to the jurisdiction of the court, and properly overruled all the grounds (except ground 8) of the demurrer to the petition.

Judgment affirmed.

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


text:
    16644.
    Rountree v. The State.
    1. The indictment was sufficient to withstand the demurrer.
    2. The defendant’s evidence on his plea of misnomer failed to establish “that he was not known and called by the name under which he was indicted,” or even to present an issue thereon.
    3. The charge of the court contained no reversible error.
    4. Conceding (but not deciding) that the court erred in refusing to allow counsel for the accused the opening and concluding arguments in the case, the error does not require a new trial, since the evidence adduced fairly demanded the verdict returned. Fader v. State, 33 Ga. App. 593 (2) (127 S. E. 472).
    5. None of the grounds of the motion for a new trial or the exceptions pendente lite show cause for a new trial.
    Decided December 15, 1925.
    Larceny of automobile; from Cook superior court—Judge Eve. May 30, 1925.

      Jeff. S. Story, Hendricks & Hendricks, James L. Dowling, for plaintiff in error.

      H. G. Morgan, solicitor-general, contra.
   Luke, J.

Only the first and second headnotes need elaboration. The defendant was convicted of simple larceny. The indictment alleged that the grand jurors “charge and accuse E. E. (Ell) Eountree with the offense of simple larceny, for that the said on the 29th day of January, in the nineteen hundred and twenty-five, in the county aforesaid, did then and there unlawfully and with force and arms one Ford Coupe automobile, model 1922, license number for 1924 as follows: 84769, motor number 6266248, of the personal property of J. C. E. Connell, and the value of two hundred fifty ($250.00) dollars, then and there found, did wrongfully and fraudulently take and carry away with intent to steal the same, contrary to the laws,” etc. This indictment clearly shows that defendant Eountree is the one charged with the offense named, puts him on notice of what he is to defend, and is not subject to demurrer because of the omission of his name after the word “said.” In view of the immediately preceding sentence, the word “said” could refer to none other than E. E. (Ell) Eountree. Neither did the court err in withdrawing from the consideration of the jury the evidence relative to the plea of misnomer. The defendant introduced his own testimony and that of two uncles on this plea.' They all swore that defendant’s name was Elmer; but the first witness testified, “I think they call him L for short. That is what we generally know him by. . . He is called in the family ‘L,’ and known in the community as ‘L.’” The second witness testified, “Sometimes people have called him for short fL’.” The defendant himself swore: “I have never seen that abbreviated unless it was by CL.’ I have gone by that name.” There is no difference in the sound of L and Ell. See Roland v. State, 127 Ga. 401 (56 S. E. 412). Since all the evidence of the defendant, as well as evidence for the State, showed that he was called by the name of L or Ell, there was nothing for the consideration of the jury on this question, and the court properly so held; and the indictment was sufficient in that respect. “If the name set out in the indictment is the name by which the party was called, one that he recognized and one by which he was known, it is sufficient in law.” Jackson v. State, 134 Ga. 473 (1) (68 S. E. 71). The defendant’s evidence failed to establish that “he was not known and called by the name under which he was indicted,” or even to present an issue thereon. Penal Code (1910), § 979.

Judgment affirmed.

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


author: Brotees, O. J.

text:
    16713.
    Tucker v. The State.
    Decided December 15, 1925.
    Conviction of assault with intent to murder; from Berrien superior court—Judge Knight. July 11, 1925.

      Jeff. S. Story, William Story, Elsie E. Griner, for plaintiff in error.

      E. C. Morgan, solicitor-general, contra.
   Brotees, O. J.

1. The accused was convicted of an assault with intent to murder. Upon the trial evidence was adduced which would have . authorized a finding that there was a mutual intent to fight on the part of the accused and the person alleged to have been assaulted by him, and that mutual blows were exchanged. The judge, therefore, even without a request, should have instructed the jury upon the law of voluntary manslaughter, and his failure so to charge requires another hearing of the case. See Pollard v. State, 124 Ga. 100 (1,2) (52 S. E. 149).

2. In view of the above-stated ruling, the other grounds of the motion for . a new trial are not passed upon.

Judgment reversed.

Luke and Bloodworth, JJ., coneur.


text:
    16807.
    Hedgepath v. Bobo.
    Decided December 15, 1925.
   Luke, J.

The plaintiff sought to recover damages for an alleged malicious prosecution. Upon the conclusion of his testimony the court properly granted a nonsuit. See, in this connection, Hicks v. Brantley, 102 Ga. 264 (29 S. E. 459).

Judgment affirmed.

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

Action for damages; from Floyd superior court—Judge Wright. August 16, 1925.

M. B. Eubanks, for plaintiff.

Willingham,, Wright & Covington, for defendant.


author: Bloodworth, J.

text:
    16808.
    Guthrie v. Rowan.
    Decided December 15, 1925.
    Complaint; from city court of Nashville—Judge W. R. Smith. August 27, 1925.

      B. F. Hendricks, William Story, for plaintiff in error.

      Jeff. S. Story, contra.
   Bloodworth, J.

1. This was a suit upon a promissory note given by the defendant for the purchase-price of a horse. The defendant filed a plea of failure of consideration; but she will not be heard to set up that defense, as she expressly waived any such right that she may otherwise have had when she signed the note sued on, which contained an agreement that the consideration of the note was the purchase-price of a. certain horse bought by her from the plaintiff; that on account of the credit extended to her, she assumed all the risk, and that she purchased the horse on her own judgment and without any express or implied warranty, and without any representations not fully set out in the note. Purser v. Rountree, 142 Ga. 836 (1), 838 (1) (83 S. E. 958), and cases cited. The court did not err in striking the original answer of the defendant.

2. “While parol evidence is admissible to prove a new and distinct agreement subsequent to the original written contract in reference to the same subject-matter (Civil Code (1910), § 5794), such new agreement must be based upon a valuable consideration and embody the essentials of a new contract.”' Phelps v. Belle Isle, 29 Ga. App. 572 (3) (116 S. E. 217), and cases cited. The rulings in these cases show that the court properly struck the proposed amendment to the plea. See, in this connection, Hoffman v. Franklin Motor Co., 32 Ga. App. 230 (5), 234.

3. The court having properly stricken the amendment to the plea and the plea itself, and no evidence having been introduced for the defendant, and that for the plaintiff having demanded a verdict in her favor, the court did not err in directing the jury to return such a verdict.

4. Not being fully convinced that this case was appealed to this court for delay only, the request that ten per cent, damages be awarded the plaintiff, as provided by § 6313 of the Civil Code of 1910, is denied.

Judgment affirmed.

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


author: Broyles, O. J.

text:
    16809.
    Byrd v. The State.
    Decided December 15, 1925.
    Arson; from Bibb superior court—Judge Mathews. August 18, 1925.

      Clements &' Clements, W. A. McClellan, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Broyles, O. J.

The defendant was indicted for the offense of arson. Upon the trial the judge charged as follows: “Everything in the case is circumstantial evidence except that of a witness who testified he saw the actual burning, and saw the defendant in the act of burning it.” This charge was excepted to on the ground that it contained an intimation or expression of opinion on the part of the trial judge as to what had been proved in the case. Held: The exception was well taken, and the-error in the charge requires a new trial. Suddeth v. State, 112 Ga. 407 (3), 409 (37 S. E. 747), and citations; Edwards v. State, 4 Ga. App. 167 (2), 171 (60 S. E. 1033); Pettyfoot v. State, 7 Ga. App. 26 (65 S. E. 1074).

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Broyles, 0. J.

text:
    16810.
    Flanders v. Vanderbilt et al., receivers.
    Decided December 15, 1925.
    Affidavit of illegality; from city court of Wrightsville—Judge Blount. August 13, 1925.

      A. L. Hatcher, H. T. Hides, for plaintiff in error.

      C. 8. Claxion, contra.
   Broyles, 0. J.

1. The judge committed no error in his rulings upon the admissibility of evidence, and, under the facts of the case, properly directed a verdict in favor of the plaintiff in fi. fa.

2. This court not being satisfied that the writ of error was prosecuted for the purpose of delay only, the request of the defendant in error for the award of damages is denied.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16813.
    Wilkes v. Tennessee Chemical Company.
    Decided December 15, 1925.
   Bloodworth, J.

The court did' not err in striking the answer of the defendant as amended, nor in thereafter awarding judgment in fay;or of the plaintiff for the principal, interest, and attorney’s fees sued for.

Judgment affirmed.

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

Complaint; from city court of Camilla—Judge Burson. September 7, 1935.

Hill & McElvey, Butch Wilkes, M. A. Warren, for plaintiff in error.

Pope & Bennet, contra.


text:
    16816.
    Vickery v. The State.
    Decided December 15, 1925.
    Conviction of manslaughter; from Hart superior court—Judge W. Ii. Hodges. August 34, 1935.

      B. B. Zellars, J. H. & Emmett Skelton, Tuti & Brown, for plaintiff in error.

      A. S. Skelton, solicitor-general, Callaway & Howa/rd, T. S. Mason, contra.
   Luke, J.

The conviction of the defendant was amply authorized by the evidence, and has the approval of the trial judge. There was no error in the charge of the court. The assignments of error upon the court’s failure to charge as requested, and upon the excerpts from the charge of the court, are without merit, when the charge is read in its entirety. The defendant has had a legal trial, and for no reason appearing in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    16817.
    Adams v. The State.
    Decided December 15, 1925.
    Conviction of selling liquor; from city court of Polk county— Judge Tison. August 37, 1935.

      Bunn & Trawich, for plaintiff in erroT.

      J. A. Wright, solicitor, contra.
   Bloodworth, J.

None of the special grounds of the motion for a new trial shows any reason why a new trial should be granted, and the evidence supports the verdict.

Judgment affirmed.

Broyles, O. J., am,d Luke, J., concur.


author: Broyx.es, 0. J.

text:
    16818.
    Hester v. The State.
    Decided December 15, 1925.
    Conviction of burglary; from Laurens superior court—Judge Camp. August 29, 1925.

      Hal B. Wimberly, for plaintiff in error.

      Fred Eea, solicitor-general, contra.
   Broyx.es, 0. J.

The defendant was convicted of the offense charged, and his motion for a new trial was overruled, but the only assignment of error in the bill of exceptions is upon the rendition of the verdict, and it does not affirmatively appear from the bill of exceptions and the record that the bill of exceptions was tendered to the judge within twenty days of the judgment complained of. This court, therefore, is without authority to entertain the bill of exceptions.

Writ of error dismissed.

Luke and Bloodworth, JJ., concur.


text:
    16819.
    Spivey v. The State.
    Decided December 15, 1925.
    Conviction of vagrancy; from Laurens superior court—Judge Camp. August 29, 1925.

      G. 0. Bidgood, for plaintiff in error.

      Fred Eea, solicitor-general, contra.
   Luke, J.

The conviction of the accused was amply authorized by the evidence, and for no reason pointed out in the record did the court err in overruling his motion for a new trial.

Judgment affirmed.

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


text:
    16820.
    WALLER v. THE STATE.
    It was not error to refuse a new trial because of alleged newly discovered evidence.
    Decided December 15, 1925.
    Conviction of carrying pistol; from Eayet'te superior court-judge Searcy. July 23, 1925.

      Lester G. Diclcson, for plaintiff in error.

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

1. “Though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole eifect of the evidence would be to impeach the witness, a new trial will not be granted.” Arwood v. State, 59 Ga. 391. Levining v. State, 13 Ga. 513 (1); Wright v. State, 34 Ga. 110 (2); Jackson v. State, 93 Ga. 190 (18 S. E. 401); Haynes v. State, 18 Ga. App. 741 (3), 742, 743 (90 S. E. 485). “To sustain a motion for a new trial on the ground of newly discovered evidence of witnesses to the eifect that they were present at the time in question, and that the weapon which was drawn by the deceased was a knife and not a pistol, it is not sufficient for the accused to state in his affidavit that he did not know the facts so sworn to by these witnesses, without stating that he did not know that these witnesses were present at the time.” Kinnebrew v. State, 81 Ga. 765 (7 S. E. 691). “An affidavit in support of the. witness upon whose newly discovered evidence a new trial is sought must give the names of his associates, a statement that he keeps good company not being sufficient to meet this requirement, which is necessary to enable the prosecution to make a counter-showing; and where such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by refusing to grant a new trial on this ground.” Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175); Smith v. State, 34 Ga. App. 601 (128 S. E. 699). “The discretion of a trial judge in refusing a new trial on the ground of newly discovered evidence will not be controlled unless manifestly abused. Tilley v. Cox, 119 Ga. 867, 872 (47 S. E. 219).” Hayes v. State, 16 Ga. App. 334 (1) (85 S. E. 253). Under the rulings in the foregoing cases there is no merit in the amendment to the motion for a new trial which was based upon alleged newly discovered evidence.

The evidence was ample to support the verdict,- and the judge properly overruled the motion for a new trial.

Judgment affirmed.

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


author: Blood worth, J.

text:
    16821.
    Veal v. Huffman.
   Blood worth, J.

1. The court did not err in any of its rulings on the pleadings on which error was assigned in the exceptions pendente lite.

2. In no ground of the motion for a new trial is there any error that requires another hearing of the case.

Decided December 15, 1925.

Complaint; from Floyd superior court—Judge Wright. October 2, 1924.

Paul H. Boyal, for plaintiff in error.

F. W. Copeland, Porter & Mebane, contra.

3. The verdict is not lacking in evidence to support it.

Judgment affirmed.

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


text:
    16825.
    Parham v. The State.
    Decided December 15, 1925.
    Conviction of selling liquor; from city court of Macon—Judge Jordan. July 25, 1925.

      W. 0. Cooper Jr., for plaintiff in error.
   Luke, J.

The sole assignment of error is that the evidence did not authorize the conviction. The guilt of the accused was established positively by evidence for the State. It was not error to overrule his motion for a new trial. ’

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., eoneur.


text:
    16829.
    Barnett v. The State.
    Decided December 15, 1925.
   Bloodworth, J.

The date of the judge’s certificate to the bill of exceptions will be presumed to be the date on which it was tendered to him, where it does not affirmatively appear from the bill of exceptions or from the certificate thereto that it was tendered on a different date. To give this court jurisdiction in a criminal case, the bill of exceptions must be tendered within twenty days from the rendition of the judgment complained of; and where the date on which it was tendered does not affirmatively appear, and the recital in the bill of exceptions that it was tendered “within the time provided by law” is qualified by the additional words, “and within thirty days of the entry of the judgment overfilling said motion for new trial,” and the certificate of the judge is dated more than twenty days after the rendition of the judgment, the jurisdiction of this court to entertain the writ of error is not affirmatively shown. Wallace v. State, 16 Ga. App. 30 (84 S. E. 486); Roberts v. State, 18 Ga. App. 504 (89 S. E. 595); Tuggle v. State, 30 Ga. App. 670 (118 S. E. 778).

Under this ruling the writ of error is

Dismissed.

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

'■Conviction of burglary; from DeKalb superior court—judge1 Hutcheson. August 22, 1925.

Bernard L. Chappell, for plaintiff in error.

Claude C. Smith, solicitor-general, contra.


text:
    16831.
    DeVANE v. PLUNKETT.
    The contract in question, as to the sale of timber, is too vague, indefinite, ' and uncertain to he the basis of a recovery of damages for its breach. The amendment to the petition was properly stricken on demurrer, and the court did not err in sustaining the demurrer and dismissing the case.
    Decided December 15, 1925.
    Action for breach of contract; from' Dooly superior court— Judge Crum. September 10, 1925. '
    On February 5, 1924, plaintiff wrote to the defendant as follows: “I understand that you have skidder and complete logging outfit, and would like to know if you would be interested in setting down your equipment for around one half million' feet, and on what basis if you would want to handle the timber. I could either pay you so much to put the timber to the railroad, or would sell you the timber outright. Please let me hear from you by return mail.” On February 27, 1924, defendant wrote to the plaintiff the following letter: “Have decided I would buy your timber we' looked at at $5.00 a thousand, and will put camp over there as soon as I can. Get your agreements with you [your?] men for the timber straight and write me where to meet you. Poplar, ash, white oak $5.00 per thousand. Eed gum and pine $3.00 thousand.” Basing his right to recover on the contract alleged to have been created by this .correspondence, and the fact that the defendant had made a payment to bind the bargain and entered upon the' land and commenced to cut the timber, plaintiff brought suit against the defendant, and alleged that he obtained a one-year lease from the owners of the timber, notified the defendant of the lease, and that the defendant would have until March 2, 1925, to cut said timber; that after the defendant had made said payment he “forthwith entered and began to saw and cut the timber;” that in July defendant ceased to cut the timber; that plaintiff “purchased said timber at the price of $3.00 per thousand feet of poplar, ash, and white-oak' timber, and $2.00 per thousand feet for red gum and pine timber, and that he had a profit by reason of said contract with defendant of $2.00 per thousand feet for poplar, ash, and white oak, and $1.00 per thousand feet for red-gum and pine timber;” that at the expiration of the lease there was left “on said lands uncut timber, to wit, 175,000 feet of poplar, ash, white oak, and like timber, and 200,000 feet of red-gum, pine, and like timber.” Plaintiff prayed for a judgment for $550, the alleged profit to him on the uncut timber. The defendant filed general and special demurrers to the petition, and filed an amendment to his answer, which was demurred to and disallowed. Thereafter the court sustained the demurrer to the petition and dismissed the case, and the plaintiff excepted.

      8. B. Lippitt, for plaintiff.

      Watts Powell, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.) The foregoing statement of facts, in connection with the opinion of the judge in sustaining the demurrer to the petition and dismissing the case, will make clear the issues involved and the rulings of the court. The opinion is as follows: “At the appearance term of this case an order was passed by the court upon the call of the appearance docket, providing for a hearing of the defendant’s demurrer to the plaintiff’s petition, at chambers, at Cordele, Ga., on the 4th day of September, 1925. On September 4, 1925, at chambers, at Cordele, Ga., counsel for plaintiff and the defendant were each heard on such demurrer, at which time the plaintiff presented the court an amendment to his petition, which was allowed, subject to demurrer, as will appear by order of the court endorsed thereon. At the same time the defendant made and filed a demurrer in writing to the said amendment of the plaintiff, upon which was entered this day an order sustaining the same. After argument on the original demurrer of the defendant, the plaintiff’s amendment, and the defendant’s demurrer thereto, by consent of counsel for both sides the case was taken under consideration by the court, to be decided at the convenience of the court, counsel for each side to have the privilege of submitting briefs. A law brief from the plaintiff’s counsel has been received and duly considered.

“After consideration, I.am of opinion that the contract entered into by correspondence between the plaintiff and the defendant, as disclosed by the petition, is too vague, uncertain, and indefinite to be enforced by a decree for the specific performance thereof, or that damages could be awarded for a non-performance thereof. The writings do not show what size trees of either of the kinds of timber sold were to be cut, removed, and paid for. It is common knowledge that where the kinds of timber or trees named in the writings are to be found in this section, the trees are of varying size. It probably also could be said that it is a matter of common knowledge that the large and long-bodied trees of each of the kinds named in the writings, when used for sawmill, or lumber, or stave, or piling, or other purposes, command a higher price per thousand feet than the smaller trees, and that small saplings and trees of small diameter are generally worthless for such purposes. The writings showing that payment was to be made per thousand feet, it is but natural that it was contemplated that the timber mentioned was to be used for some of or similar purposes above named. There is nothing showing that the parties entered upon the lands' and marked any of the trees cwe looked at.’ If this had been a sale of the timber on the lands mentioned for a certain amount in money, and there had been no restrictions in the writings or reservations as to the size of trees to be cut, then it probably could be said that all of the timber on the lands suitable for the purposes contemplated was sold and should be paid for at the lump price. But this contract was executory. Of course, so far as executed by the defendant entering upon the lands and cutting timber, payment for the timber cut, at the price agreed on, could be enforced; but this suit is one for damages for failing to cut timber of different kinds and to pay for the same at the price per thousand feet that the trees cut produced in lumber or would scale. It is like it was a suit to force the defendant to enter upon the lands described and cut timber therefrom. Could the court say by its decree that the buyer should cut and pay for trees of this or of that size ? If it could not, then can the court say that the plaintiff has been damaged in any. certain amount for the failure of the defendant to cut, remove, and pay for any particular timber ?

“Standing trees being part of the realty, contracts for the sale thereof must be in writing. We' must look to the writing (in this case the correspondence between the parties) to see what the contract is. We can not add to its terms by parol (as the plaintiff ■seeks by his amendment). But it is argued by the plaintiff’s counsel that the defendant bought ‘the timber we looked at,’ and that he entered upon the lands and began cutting after paying a certain sum of money. Could a court, in a specific-performance case, decree that the defendant must take the timber ‘we looked at’ where payment is to be made by the thousand feet? The timber ‘we looked at’ was some part or all of the timber on the three plantations mentioned. What part of it was ‘looked at ? ’ Was all of the timber on the three plantations mentioned ‘looked at?’ If so, then what size trees were ‘looked at?’ It seems to me that something more definite and certain than that is required to make a contract binding so that damages for nonperformance can be awarded. For these reasons the defendant’s demurrer is hereby sustained and the plaintiff’s case dismissed.”

While not committing ourselves to every statement made by the learned judge in this opinion, we do agree with him in most of his conclusions, and especially that the amendment to the petition was subject to the demurrer, and that “the contract entered into by correspondence between the plaintiff and defendant, as disclosed by the petition, is too vague, uncertain, and indefinite to be enforced by decree for the specific performance thereof,” or for damages to be awarded for a nonperformance thereof, and he properly sustained the demurrer to the petition and dismissed the case. See Baucom v. Pioneer Land Co., 148 Ga. 633 (1), 634 (2) (97 S. E. 669); Prior v. Hilton & Dodge Lumber Co., 141 Ga. 117 (2) (80 S. E. 559); Hamby v. Truitt, 14 Ga. App. 515 (3) (81 S. E. 593); Mims v. Gillis, 19 Ga. App. 53 (90 S. E. 1035), and cases cited in the opinion.

Judgment affirmed.

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


author: Brotles, O. J.

text:
    16832.
    Woodall et al. v. Farmers Bank of Milner.
    Decided December 15, 1925.
   Brotles, O. J.

The motion for a new trial contained the usual general grounds only; the verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodnoorth, JJ., concur.

Complaint; from city court of Barnesville—Judge Darsey presiding. August 12, 1925.

Reagan & Reagan, for plaintiffs in error.

E. 0. Dobbs, contra.


text:
    16834.
    Williams v. The State.
    Decided December 15, 1925.
    Seduction; from Polk superior court—Judge Irwin. September 11, 1925.
    Application for certiorari was denied by the Supreme Court.

      Mundy &. Watkins, for plaintiff in error.

      E. 8. Gi'iffith, solicitor-general, E. 8. Ault, contra.-
   Broyles, C. J.

1. Error is assigned upon the following excerpt from the charge of the court: “Now I have charged in all criminal cases (and you have heard me until it gets to be an old song with me) the defendant in all cases comes before the court and jury with the presumption of innocence in his favor.” It is contended that the word in parentheses tended to minimize a fundamental right of the defendant, and that they gave the impression to the jury that the law of the presumption of every defendant’s innocence “amounted to no more than an archaic rule, a pure technicality, and should be treated lightly, as the court treated it in his charge.” Held: The portion of the excerpt complained of, while inaptly phrased, does not, when considered in connection with the rest of the charge upon the subject of the presumption of the defendant’s innocence, require another hearing of the case.

2. Although evidence as to the good character of the accused was introduced, the failure of the court to charge upon the subject of good character, in the absence of a written request therefor, was riot error. Sanford v. State, 31 Ga. App. 160 (1) (120 S. E. 29), and citations.

3. Under repeated rulings of the Supreme Court and of this court, the failure to charge upon the subject of the impeachment of witnesses was not error, there being no written request for such a charge.

4. The assignments of error not dealt with above are without merit.

5. The verdict was authorized by the evidence. •_ ■

Judgment affirmed.

Luke and Bloochoorth, JJ., eoneur.


text:
    16835.
    Goodlett v. The State.
    Decided December 15, 1925.
    Conviction of possessing and transporting liquor; from Whitfield superior court—Judge Tarver. August 22, 1925.

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

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

The sole assignment of error is that the conviction of the accused was not authorized by the evidence. The evidence amply authorized, indeed if it did not demand, the conviction. The court properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    16836.
    HAWKS v. THE STATE.
    A verdict approved by the trial judge will not be disturbed by this court because of alleged insufficiency of evidence, when supported by any evidence.
    Decided December 15, 1925.
    Conviction of possessing liquor; from Clarke superior court-judge Eortson. August 29, 1925.

      Gerdine Lumpkin, Carlisle Cobb, for plaintiff in error.

      Henry H. West, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial in this case contains no special grounds. The verdict has the approval of the trial judge, and we can not say that there is no evidence to support it. Applications for new trial on the ground that the verdict is contrary to the evidence are addressed to a sound legal discretion to be exercised by the trial judge. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere, if there is any evidence which would justify the jury in reaching the conclusion set forth in the verdict. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful. The wisdom and discretion of the trial judge are sufficient for this court to endorse his judgment in cases of this character. Terrell v. State, 29 Ga. App. 285 (114 S. E. 909).

Judgment affirmed.

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