text:
    17491.
    FINANCE COMPANY OF THE SOUTH v. LOWRY, sheriff, et al.

    1. Wliere the furniture and fixtures of a tenant in a store, consisting of various separate and distinct articles, are subject to the iien of a distress warrant in favor of the landlord, but a part of such property is subject to a prior reservation of title in favor of the tenant’s vendor, held by another as assignee, and where, after both claims have been put into execution, the sheriff sells the property as a whole and in bulk, after first publicly inquiring for objections, if any, to such procedure and hearing none, and where the sheriff pays the entire proceeds on the claim of the landlord, and, by a subsequent rule against the sheriff, the assignee seeks to recover the amount of the assigned claim, the burden is on the sheriff, as by evidence of the relative value of the part of the property subject to the prior claim as compared with the value of the whole, to show what proportion of the fund should be applied to the prior claim, or else suffer judgment in the assignee’s favor for the entire fund, less costs, not exceeding the amoiynt due on that claim.
    2. The above ruling is not altered by the fact that an authorized representative of the vendor may have appeared at the sale after it had been commenced as a sale in bulk, and may then have made certain bids on the property.
    Confusion of Goods, 12 C. J. p. 496, n. 57.
    Sheriffs and Constables, 35 Cye. p. 1878, n. 48.

      3. Applying tlie above rulings to the facts of this case, the court erred in directing a verdict in favor of the sheriff and against the plaintiff in the rule. Claflvn v. Continental Jersey Works, .85 Ga. 27 (4) fllS. E. 721) ; Civil Code (1910), §§ 4587, 3592; 12 C. J. 496; Bank v. Stewart Lumber Co.', 119 Wis. 54 (94 N. W. 777).
    Decided January 24, 1927.
    Money rule; from city court of Atlanta — Judge Reid. May 8, 1926.

      V. H. Gaddis, Little, Powell, Smith & Goldstein, Kendrick L. Scott, for plaintiff.

      Wright, Cox & Johnson, W. F. Slaton, for defendants.
   Bell, J.

This case arose on the petition of Finance Company of the South for a money rule against Lowry, sheriff of -the city court of Atlanta, to which Grant Properties Incorporated was made a-party. The issues as framed by the pleadings were tried before a jury. The judge directed a verdict in favor of the .sheriff. Thereafter the Finance Company of the South moved for a new trial, which was refused, and it excepted. The motion for a new trial contained the usual general grounds, with some amplification thereof in an amendment, and a special ground assigning error on the direction of the verdict. The following facts were developed upon the trial, without dispute: A tenant in a store belonging to Grant Properties Incorporated had purchased certain furniture and fixtures therein, to which the vendor had reserved title until the payment of the purchase-money. The vendor, after due record, transferred the contract of conditional sale to Finance Company of the South. The tenant had in the store other fixtures which were not subject to such reservation of title. The rents having become past due, Grant Properties Incorporated sued out a distress warrant and placed it in the hands of the sheriff, and it was levied upon all the property. Thereupon the Finance Company also foreclosed its claim and placed it in the hands of the sheriff for execution. The property was subsequently brought to sale. Before the sale the deputy who represented the sheriff inquired publicly if there were objections to a sale of the entire property as a whole and in bulk. The attorney for Grant Properties Incorporated was present and had knowledge of this inquiry. At this time no person was present representing the Finance Company. Hearing no objection, the deputy proceeded to sell all the property together for a lump sum. Before the property was knocked off, however, an authorized representative of the Finance Company appeared at the sale and made certain bids on the property, after learning on arrival that it was being offered in bulk. The proceeds of the sale were less than the amount of the claim of the Grant Properties Incorporated. The sheriff shortly paid over the entire fund, less costs, to that company. The Finance Company introduced testimony as to the relative value of-the property subject to its claim, as compared with the value of the entire property sold, thus forming a basis upon which the jury might have worked in dividing the proceeds of the sale if the case had been submitted to them.

There was no confusion here of the goods themselves, since they' consisted of separate and distinct articles. There was, however, a confusion of the proceeds of the sale of the goods; and under all the facts appearing, we think the principles of law which would govern in a case of confusion of goods are applicable. If the sheriff chose to sell the property in bulk when the Finance Company had a first lien upon a part of it, any inconvenience in setting off to that party its pro rata share of the proceeds should fall upon him. It became his burden, as by evidence of the relative value of that portion of the property subject to the prior claim as compared with the value of the whole, to show what proportion of the fund should be applied to such prior claim. In default of his carrying this burden, judgment should have been rendered in favor of the holder of the prior claim for the full amount of the fund, not exceeding the amount of such claim.

The fact that an authorized representative of the Finance Company appeared at the sale after it had been commenced as a sale in bulk, and may then have made certain bids on the property with knowledge of the manner in which it was being sold, does not alter the case. In the absence of anything else done by this company, it had the right to assume that the sheriff, in selling the property in bulk, 'expected to carry the burden which would rest upon him as to the distribution of the fund, as a result of his choice to sell the property in such manner. From what has been said, the' court erred in refusing the motion for a new trial. Even if, by bidding on the property or failing to object, the Finance Company could be said to have become a joint author of the coalition sale, this could have brought upon it nothing worse than the burden (if that) of “unscrambling” the proceeds; and it actually carried this burden sufficiently to go to the jury.

Judgment reversed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    17494.
    Bell Brothers Marble Co. v. American Securities Co.
    Corporations, 14a O. J. p. 732, n. 60; p. 736, n. 15; p. 738, n. 53, 54, 56; p. 817, n. 54.
   Bell, J.

1. The name of the defendant, Bell Brothers Marble Company, imports a corporation. Quitman Oil Co. v. McRee, 18 Ga. App. 128 (2) (88 S. E. 291); Todd v. Stewart, 17 Ga. App. 113 (86 S. E. 284).

2. In the absence of express charter power to do so, no corporation organized under the laws of this State has authority to lend its credit for the mere accommodation of third persons, — as by a contract of surety-ship or of accommodation indorsement. First National Bank v. Monroe, 135 Ga. 614 (69 S. E. 1123, 32 L. R. A. (N. S.) 550); Houser v. Farmers’ Supply Co., 6 Ga. App. 102 (1) (64 S. E. 293).

3. A note payable to A, sighed at the bottom by B, and bearing upon the back the signature of C, a corporation, as first indorser, is prima facie the note of B as principal, and of the corporation as an accommodation indorser or surety. A person holding such a note under the indorsement of A, the payee, is, in the absence of anything to the contrary, deemed to have had notice, from the paper itself, of the corporation’s relation thereto as an accommodation indorser. Bank of Madison v. Bell, 30 Ga. App. 458 (1) (118 S. E. 439); Taff v. Larey, 29 Ga. App. 631 (1) (116 S. E. 866), and cases cited.

4. A purchaser of a promissory note, who has knowledge that one of the indorsers is a corporation which has indorsed for accommodation only, can not assume that the corporation had authority, under its charter, to enter into such a contract. Savannah Ice Co. v. Canal-Louisiana Bank, 12 Ga. App. 818, 823 (79 S. E. 45).

5. In this action against a corporation as an indorser of a promissory note, it appearing from the evidence that the defendant’s indorsement was merely for accommodation, and that the plaintiff, in taking the note, was charged with knowledge of this fact, and it further appearing, from the evidence, that the defendant, under its charter, had no authority to make such indorsement, and therefore that its act in doing so was ultra vires, as alleged in the defendant’s answer, the plaintiff was not entitled to recover, and the court erred in directing a verdict in the plaintiff’s favor.

(a) This case is distinguishable from the case of Jacobs Pharmacy v. Southern Banking & Trust Co., 97 Ga. 573 (25 S. E. 171), since in that case the defendant corporation made the note payable to itself and thereafter indorsed it as payee, thus surrounding the transaction with such circumstances as warranted the purchaser in assuming that the indorsement was for value and in due course, and that the corporation had acted within its corporate authority as a trading corporation, authorized by its charter to make and indorse promissory notes for value in the course of its business.

Decided January 24, 1927.

Complaint; from Clarke superior court — Judge Fortson. May 18, 1926.

James W. Arnold, for plaintiff in error. W. K. Meadow, contra.

Judgment reversed.

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


text:
    17500.
    DICKSON v. OFFICERS OF COURT.
    Where a sentence in a misdemeanor case provided that the defendant should work upon the chain-gang or at the State farm for twelve months, but that after serving six months of the term, the remaining six months might be served on probation, “provided $1,000 as herein specified has been paid at the end of said six months’ sentence,” a fine of $1,000 being imposed “as a condition precedent before this probationary sentence shall be operative,” and where the sentence contained the statement, “Judgment is hereby rendered for said $1,000, and execution is ordered to issue by the clerk of this court for said $1,000 as provided by law,” held: The imposition of the fine was unconditional, and the State was an thorized to enforce payment thereof by execution, although the defendant, after serving the first six months, declared his intention to serve in actual confinement the entire sentence of twelve months, claiming that his service of the last six months was in lieu of the fine.
    Fines, Forfeitures and Penalties, 25 O. J. p. 1162, n. 18.
    Decided January 24, 1927.
    Affidavit of illegality; from Hancock superior court — Judge Park. May 29, 1926.
    Application for certiorari was denied by the Supreme Court.

      John C. Lewis, Allen & Pottle, for plaintiff in error.

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

W. L. Dickson entered a plea of guilty to an indictment charging a misdemeanor; thereupon the court entered the following judgment and sentence: “W. L. Dickson is this day sentenced to work in the chain-gang, or at the State farm, for a period of twelve months, the time to be computed from his reception therein. However, after he serves six months of said period, the latter six months of said period is suspended, provided $1,000 as herein specified has been paid at the expiration of said six months’ sentence. However, it is hereby ordered that said defendant is herewith given leave to serve the aforesaid sentence outside the confines of the jail, chain-gang, or other place of detention, as the case may be, provided that the aforesaid person shall indulge in no unlawful . . conduct. The probationer while thus under the supervision of the court shall pay a fine to the amount of $1,000 as a condition precedent before this probationary sentence shall be operative. The probationer shall be subject to the future order of the court, as provided by the act of 1913, p. 112, of the legislature of this State.- Judgment is rendered for said $1,000, and execution is ordered to issue by the clerk of this court for said $1,000, as provided by law.” The defendant was assigned to service on the State farm, and, after having commenced serving his term, but before the expiration of the first six months, tendered to the proper officer the amount of the fine, on the condition that he be released from his imprisonment. The tender was refused, and he brought a petition for habeas corpus against B. H. Dunaway, superintendent. On the trial of that proceeding the judge remanded him to the custody of the officer, and he sued out a writ of error to the Supreme Court. See Dickson v. Dunaway, 162 Ga. 210 (132 S. E. 911). The Supreme Court, in passing upon the case as then presented, held as follows: “The judgment or sentence construed in its entirety provides for a discharge of the defendant on probation after he has served six months of a term of twelve months in the chain-gang or other place of detention, provided the defendant on or before the expiration of said six months shall have paid a fine of one thousand dollars. The words 'suspended’ and 'aforesaid’ were not used in a technical or literal sense, but both were used with reference to parole of the defendant for the latter six months of the twelve-months term. Giving to them such significance, the parole that was provided for related only to the latter six months of the term.”

The defendant having refused to pay the fine except upon the terms and conditions of the tender made by him, an execution was issued therefor in pursuance of the sentence and was levied on property of the defendant. Thereupon he filed an affidavit of illegality, in which he set up, that, under the provisions of the sentence, he had an election to pay the fine and serve the last six months of the sentence on probation, or, in lieu of such payment, to execute this part of the sentence, as he did the previous part, in actual servitude; that he had served the twelve months except about five months, and that he intended to do actual service of the remainder. His affidavit further alleged that he was not liable to pay the fine and, in addition, to serve the entire sentence, and that upon the expiration of his twelve months’ servitude on the State farm, the judgment and sentence of the court would be fully executed. The court sustained a general demurrer to the affidavit of illegality, and the defendant excepted.

As has been seen above, the Supreme Court adjudicated that the prisoner was bound to serve the first six months of his sentence in the chain-gang or at the -State farm, but that he might serve the last six months on probation, “provided the defendant on or before the expiration of the said six months shall have paid the fine of one thousand dollars.” The question to be determined in the present case is whether the defendant could elect either to pay the fine or in lieu thereof to actually serve the last six months of his sentence. The court below held that the payment of the fine was mandatory; and with this construction of the sentence we agree. The court had the power to pass upon the defendant a sentence of twelve months in the chain-gang, and also to impose a fine of not exceeding $1,000. Penal Code (1910), § 1065. The court, having the power to do both, could do less than both, and could do so without giving the defendant any election as to paying or refusing to pay the fine. In our opinion, the judgment under construction said to the defendant that he should in any event do actual service in the chain-gang or at the State farm for six months; also that he should pay a fine of $1,000, the State’s right to demand which was without condition; but that upon the payment of this fine, whether made voluntarily or involuntarily, he might, upon certain other conditions, pertaining to his good behavior, etc., serve on probation the last six months of his sentence. He had no election as between paying the fine and actually serving the last half of his sentence. Otherwise it would have been idle for the court to render judgment for the amount of the fine and to order that execution issue therefor. This is not to give effect merely to that clause of the sentence to which we have just alluded. We have construed the sentence in its entirety, and we think, as stated above, that it was the intention of the court, in passing the sentence, to impose two penalties unconditionally, one as to the service of the first six months, and the other as to payment of the fine; and that while the defendant was to be permitted to serve on probation the last six months of his sentence, provided the fine was paid, it was not the intention of the court to permit the defendant to say whether the fine should be paid or not. If the defendant did not voluntarily pay the fine, the State was authorized to enforce payment by execution, and if it succeeded in doing so, the defendant was entitled to the benefit of the probation feature of the sentence as to the last six months thereof, as though he had paid the fine voluntarily. He was not to be so entitled, however, if it turned out that he refused to pay the fine and also that the State was unable to enforce payment by execution.

Where one is convicted of a misdemeanor, and the judgment is unconditional that he pay a fine, the judge, if payment is refused, has the power to order the clerk of the court to issue an execution against the property of the defendant, to enforce collection. McMeekin v. State, 48 Ga. 335 (1).

From what has been said, the affidavit of illegality was properly stricken.

Judgment affirmed.

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


text:
    17521.
    MILLER & COMPANY v. CADILLAC COMPANY OF ATLANTA.
    In this action to recover damages for injuries to an automobile, occasioned by the falling of an elevator in which the automobile was at the time being hoisted, even though it may have been established without dispute that the defendants had exercised all ordinary care in the matter of having the elevator inspected and kept in repair, there was yet evidence to authorize the inference that the defendants were negligent in other particulars, as alleged in the petition; and since this is true, the verdict in the plaintiffs favor was authorized. The court did not err in overruling the defendants’ motion for a new trial, containing the usual general grounds only.
    Appeal and Error, 4 O. J. p. 852, n. 56.
    Bailments, 6 C. J. p. 1162, n. 32.
    Decided January 24, 1927.
    Damages; from city court of Atlanta — Judge Reid. April 17, 1926.

      McElreath & Scott, for plaintiffs in error.

      George & John L. Westmoreland, contra.
   Bell, J.

This case is here upon exceptions by the defendant to the overruling of its motion for a new trial after a verdict in favor of the plaintiff. The motion contained only the usual general grounds, and the sole question for determination is whether the verdict in the plaintiff’s favor is supported by the evidence. The suit was against A. C. Miller & Company, a partnership, by Cadillac Company of Atlanta, as assignee, to recover for damage to an automobile, occasioned by the falling of an elevator used by the defendants in connection with their business of repairing and painting automobiles, and in which the automobile of the plaintiff’s assignor was being hoisted at the time the elevator fell. The original petition alleged that the defendants were negligent in the following particulars: (1) In maintaining in their place of business, for carrying automobiles from one floor to another, an elevator that was insecure and unsafe for that purpose. (2) In putting the particular automobile, which was very heavy, upon an insecure and unsafe elevator when the defendants knew or by ordinary care should have known that the elevator might fall with such automobile upon the same. (3) In not regularly inspecting the elevator for defects. (4) In using the elevator as they did when they, knew or by ordinary care should have known that the ropes and cables of the same were worn and rotten and incapable of holding the elevator and a heavy load upon the same. (5) In allowing the ropes and cables to become worn and rotten and in not replacing the same with sound ropes and cables. By amendment other specifications of negligence were added to the petition as follows: (6) “In maintaining an elevator in their hands that was old, antiquated, and not reasonably suited for the purpose of carrying said heavy automobiles such as the automobile of plaintiff. (7) “In not having installed in said elevator a safety device to prevent damage to automobiles in the event the usual running gear of the said elevator should break or give way, it being alleged in this connection that all modern elevators for. the carrying of heavy freight, such as the automobile of the plaintiff, have such safety device, it being alleged in this connection that if the said elevator of the defendants had been properly equipped with such a safety device, that it would not have damaged the car of the plaintiff, even though the elevator had fallen.” The amendment contained other charges of negligence which need not be stated. The evidence showed that the elevator was operated by electrical power applied through a winding drum, to which four cables were attached by means of two Crosby clamps. It was discovered after the accident that no part of the elevator had broken, but that the cause of its falling was that two of the cables had pulled out of the clamps by which they were attached to the drum. The evidence further showed that the defendants had employed the Weekly Elevator Company to inspect and maintain the elevator in question. It is insisted that in the employment of this company for the purpose named, and in the service which it had performed under its employment, the defendants fully discharged all duty of care with respect to inspection and maintenance. Counsel for the defendants, here the plaintiffs in error, say in their brief: “The ease, therefore, resolves itself to the narrow question: Did the Miller Company exercise ordinary care in the matter of attaching the two cables which pulled out of the drum, and ordinary care in inspecting the elevator for the purpose of discovering and repairing any defect in this specific matter?” This question represents the sole contention made by counsel for the plaintiff in error in this court. We can not concur in the position of counsel that no other issue was presented under the evidence. In our view of the case we may assume that the defendants exercised all ordinary care as to the matter of inspection and repair, because, even conceding their contention upon this point to be well taken, there was ample evidence to support one or more of the other allegations of negligence. The elevator had first been erected about 20 years before the accident, for the purpose of lifting buggies and wagons. The automobile which it was carrying when it fell weighed about 4,500 pounds. C. L. Trussell, Atlanta service manager of the Otis Elevator Company, who had been in the elevator business for a number of years, testified that the clamp used on this elevator was not practical for heavy elevators, and also that he would not think of using a Crosby clamp on an elevator under any circumstances. This witness further testified that he was actually acquainted with the elevator in question, and that he “would not recommend that elevator as being reasonably suited for carrying automobiles which weighed in the neighborhood of 4,000 to 4,500 pounds”; that its original carrying capacity was only about 5,000 pounds, and that this would vary according to its age and condition, probably decreasing as much as 25 per cent, in the 20 years of use, thus falling below the margin of safety required in lifting an automobile of the weight of the one involved in this case. Trussed was contradicted in several material particulars by evidence introduced by the defendants, but the jury had the right, nevertheless, to believe him, and their solution of the conflicts in the testimony is binding upon this court.

We think the evidence authorized a finding that the defendants were negligent as alleged in the first paragraph of the plaintiff’s amendment, designated above as paragraph 6. Furthermore, there was, in our opinion, evidence in support of the charge that the defendants were negligent in not having installed in the elevator a safety device, as contained in paragraph 7 of the amendment. Without going into the evidence further, we are content to say that the verdict was amply supported; and this being true, this court, under the assignments of error, can not do otherwise than affirm the judgment.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    17607.
    LEWIS v. MOULTRIE BANKING COMPANY.
    1. The ground of the affidavit of illegality that there was an outstanding pre-existing security deed in favor of a third person to the property levied on is without merit, since the defendant in fi. fa. could not be heard to raise such a question. See also Thompson v. Adams, 157 Ga. 42 (120 S. E. 529).
    2. The ground of the affidavit of illegality that the transfer of the fi. fa. to its present owner was not entered of yecord as provided for by section 1145 of the Civil Code (1910) is without merit, since such recording is not necessary to make it binding on the property of the taxpayer; nor is such recording necessary to preserve its priority, except as to subsequent bona fide purchasers for value. Thompson v. Adams, supra; National Bank of Athens v. Danforth, 80 Ga. 55 (4) (7 S. E. 546) ; Fuller v. Dowell, 85 ©a. 463 (2) (11 S. E. 773).
    3. Under the ruling in Norman v. City of Motiltrie, 157 Ga. 388 (121 S. E. 391), followed by this court in Southland, Investment Go. v. Gity of Moultrie, 34 Ga. App. 280 (129 S. E. 288), the description of the property in the fi. fa. was not void for uncertainty.
    4. There was merit in the remaining ground of the affidavit of illegality, . setting up that the levy was barred .by the statute of limitations, and the action of the court in overruling this ground makes it necessary to set the judgment aside.

      Executions, 23 C. J. p. 414, n. 46; p. 547, n. 66 Neiv.
    Municipal Corporations, 28 Cyc. p. 1224, n. 53, 54.
    Taxation, 37 Oye. p. 1236, n, 90,

      Decided January 24, 1927.
    Affidavit of illegality of execution; from Colquitt superior court —Judge W. E. Thomas. July 20, 1926.
    Application for certiorari was denied by the Supreme Court,
    As shown by the agreed statement of facts, on March 21, 1914, the City of Moultrie made an assessment for paving and curbing a street on which property of E. E. Lewis abutted, and on September 1, 1914, a fi. fa. was issued against the described property as belonging to him. On March 31, 1919, the fi. fa. was levied by the marshal on the lot described. On April 4, 1919, Lewis borrowed money from the Moultrie Banking Company to take up the fi. fa., and thereupon there was a purported transfer of the fi. fa. to the banking company by the city attorney. It was transferred to the banking company by the marshal of the city on April 15, 1925, and on the same day was levied by the marshal on behalf of the transferee; and to this levy Lewis interposed an affidavit of illegality. Upon the hearing of the issue before the judge, without the intervention of a jury, he overruled the affidavit and ordered that the fi. fa. proceed. Exception is taken to that judgment.

      L. L. Moore, for plaintiff in error.

      P. Q. Bryan, Hoyt H. Whelchel, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) Under the general law, as well as under a provision of the charter of the City of Moultrie, the fi. fa. issued by the city was in the nature of a tax fi. fa. and governed by tfie same procedure, and must be taken to be subject to the same period of limitation. See Civil Code (1910), § 869. Section 1147 of the Civil Code provides that “All State, county, city or other tax fi. fas., before or after legal transfer and record, shall be enforced within seven years from the date of their issue; or within seven years from the time of the last entry upon the tax fi. fa. by the officer authorized to execute and return the same, if said entry is properly entered by said officer upon the execution docket and books in which said entries are now required to be made in case of entries on executions issued on- judgments.” Thus, while the fi. fa. on its face appears to be barred, the defendant in error contends that such is not the case, for two reasons: (1) because the proceeding in the instant case being one in rem, the statutes governing the dormancy of executions has no application; and (2) because it was shown that the execution had been kept in life by a bona fide public effort to’collect it. These contentions will be discussed in the order of their statement.

It is true that the proceeding in this case is, on its face, a proceeding in rem, as was held by the Supreme Court in Norman v. City of Moultrie, 157 Ga. 388 (2) (supra); but it would not seem that for this reason alone the well-recognized principle dealt with in numerous decisions of the Supreme Court, notably in the case of Fowler v. Bank of Americus, 114 Ga. 417 (40 S. E. 248), can be taken to have present application. In the case just cited it was held that a judgment in rem founded on the foreclosure of a mortgage does not come within the dormant-judgment act. The basis of this line of decisions is that in such a case the judgment does not create the lien, but that it arises from the contract of the parties in executing the mortgage, and that the judgment of foreclosure, the execution issued thereon, and the levy do not aid the lien, but aid only its enforcement. As was said in the Fowler case, “the judgment of foreclosure is' merely an order authorizing the sale of the specific property mentioned in the mortgage, in satisfaction of the lien therein created, and, consequently, does not, like an ordinary judgment from which a .lien arises, become dormant under the statute declaring that ordinary judgments shall become dormant under certain conditions.” It will thus be seen that the idea underlying these decisions is that what liens the judgment does not give, the dormant-judgment act can not take away. Although in this line of decisions it is a necessary incident to the application of the rule enunciated that the proceeding shall be one in rem, that such is the nature of the proceeding is incidental only, and does not constitute the basis of the ruling. Counsel for the defendant in error, therefore, seek to analogize the present case to the foreclosure cases referred to, the argument being that “in the ease at bar the execution is the only method of enforcing the assessment.” It will be observed, however, that while it is true that the issuance of the execution and the levy thereunder are a method of enforcing the assessment, there could be no lien without the assessment, and the assessment is what creates the lien. Just as in ordinary suits the lien is created by the judgment and enforced by the execution, so in this case the lien is created by the assessment and enforced by tbe fi. fa. issued thereon. Here, contrary to what is true in a mortgage-foreclosure proceeding, there is no contractual lien, fixing a period of limitation different from that provided by the statute, to fall back on, so as to prevent the bar of the dormant-judgment act.

As to the other contention made by the defendant in error as a reason why the levy is not barred under the limitation act, we have somewhat reluctantly reached an adverse conclusion. Under the ruling of the Supreme Court in Hollis v. Lamb, 114 Ga. 740 (40 S. E. 751), the holder of a fi. fa. is entitled to an equitable construction of the dormant-judgment act, and any “bona fide public effort on the part of the plaintiff in fi. fa. to enforce his execution in the courts of the country” will be sufficient to prevent dormancy. It is true that in a sense the present holder’s predecessor in title had within seven years previous to the date of the present levy sought to collect the fi. fa. by making a levy, and doubtless the levy would have proceeded but for the act of the defendant in procuring the present holder of the fi. fa. to pay off the city upon the security of its transfer. It does not seem, however, that in a case where' there is no reliance upon a compliance Avith the statute as to recording entries on the execution docket, anything else will suffice, even as between the parties, except the record of acts upon the public dockets of the courts, showing a bona fide public effort to collect the debt. See, in this connection, Nelson v. Gill, 56 Ga. 537. The point seems to have been conclusively settled by what is said by the Supreme Court in Craven v. Martin, 140 Ga. 651 (79 S. E. 568). In that case it appears that not only was there an entry of levy and of notice-of it given to the defendant, but that there was actually a claim filed to the property levied upon, but inasmuch as the filing of the claim was subsequent to the seven-year period of limitation, the court held that even such a record entry of the claim did not constitute a bona fide public attempt to enforce the judgment. In the discussion of that case the court said: “It is true that there is on the fi. fa. itself an entry of levy and of written notice given to the defendant of the levy. But this, after all, is a mere entry, and such entries, without some further showing as to the actual seizure of the property or of a bona fide public effort on the part of the plaintiff in fi. fa. to enforce his execution in the courts át such times and periods that seven years will not elapse between such attempts, or between such attempts and a proper entry, will not suffice to keep the execution alive. There is nothing in the record to show, beyond the entry itself, that the notice was given to the defendant, or that a claim was filed by the defendant within seven years. The claim filed in this case was not in the record as originally transmitted to this court from the superior court; but under the authority given in Civil Code, § 6149 (4), this court directed the clerk of the superior court of Habersham county to certify and transmit the claim filed in the case; and in compliance with the order the claim was duly certified and transmitted. Upon examination of the same it appears that the claim was not filed until December, 1910. Consequently there is no sufficient evidence of any bona fide attempt to enforce the judgment against the defendant within the statutory period, and the court did not err in holding that the fi. fa. was dormant.” It thus appears that when reliance is put upon the equitable construction of the dormancy act, the kind of bona fide public effort to enforce the execution in the courts contemplated by the law is such as can and must be shown by an inspection of the public records thereof.

Under the act of March 6, 1856, and prior to the acts of 1885, 1910, and 1920 (see Hollis v. Lamb, supra), it was the law.that a judgment did not become dormant until after the expiration of seven years from the time of the last entry upon the execution by an officer authorized to execute and return the same. Effect would have to be given to the act of 1856, and the present statute law relative to the record of such entries would have to be ignored, in order to sustain the contention of the defendant in error, since all that it relies upon is an entry made upon the execution by an officer authorized to execute and return the same. Such an entry is still sufficient to keep the execution in life, provided the entry is made upon the execution docket every seven years, but such an entry, since the act of 1885, has never been sufficient of itself. It is not the entry, but “a bona fide public effort on the part of the plaintiff in fi. fa. to enforce his execution in the courts of the country,” upon which the defendant in error relies. The entry by the city marshal certainly can not be construed to mean a proceeding in the courts of the country; and to them and their records we must look in order to ascertain if such an effort has been made.

Judgment reversed.

Stephens, J., concurs. Bell, J., disqualified.


text:
    17620.
    SAVANNAH THEATRES COMPANY v. BROWN.
    A cause of action for damages against the theatres company was shown by the petition, from which it appeared that the plaintiff’s wife, a patron of the defendant’s theatre, fell and was injured when descending the theatre stairs in a crowd at the conclusion of a performance which she had been attending, it being alleged that her fall was caused by the pushing and shoving of the crowd by small boys who, with the knowledge of the defendant and without being checked, had been making a disturbance in the theatre by boisterous and hilarious conduct during the performance. While the petition may indicate that a hole in the rubber matting of the stairs, in which her heel caught, and the defective lighting of the stairway, might have contributed to the injury, the petition nevertheless plainly indicates that the efficient proximate cause, without which the injury would not have happened, was the pushing and shoving mentioned. It is the general rule that what in a given case constitutes ordinary care on the part of the proprietor of a theatre for the protection of patrons is a question for determination by the jury, and not by the court. The court did not err in overruling either the general or the special grounds of the demurrer.
    Decided January 24, 1927.
    Action for damages; from Chatham superior court — Judge Meldrim. June 29, 1926.
    Brown brought suit against the Savannah Theatres Company for expenses incurred in the treatment of his wife on account of injuries received by her in its building. The petition alleges: that she attended a performance in the defendant’s theater, having first paid her admission; that she sat in the balcony on the second floor; that during the performance a group of small boys in the balcony were making a disturbance which was not checked by the defendant, although the misconduct was known to it; that at the conclusion of the performance, the plaintiff’s wife started down the stairs among a crowd of other patrons of the theater, that the passageway was dimly lighted, and the bright light at its 'end served only temporarily to blind her, and she was compelled to feel her way down the stairs; that the crowd of small boys in the rear who had been creating the disturbance began pushing and shoving the crowd; that there was a large hole in the rubber matting on the third step above the first landing, and that “in the excitement caused by the pushing and shoving in her rear,” she suddenly caught her heel in the hole, lost her balance, and fell down the three steps to the first landing, causing the injury to her on account of which the expenses were incurred. It is alleged that the defendant company was negligent in failing to have the passageway properly lighted, in allowing the large hole to remain in the rubber mafting, “in failing to check the boys in their act of shoving and pushing the crowd . . , after defendant company had been charged with notice of their boisterous and hilarious conduct,” and in failing to preserve order among them during the entire performance, and in failing to remonstrate with them and caution them in regard to such misconduct. It is alleged that if such misconduct had been stopped during the performance, the boys would not have been so wild and uncontrolled, and would not have been pushing and shoving on the stairway, to the injury and damage of the petitioner’s wife, and the consequent damage of the petitioner.

      Negligence, 29 Cyc. p. 495, n. 60; p. 636, n. 72; p. 639, n. 4.-
    Theaters and Shows, 38 Cyc. p. 270, n. 66.

      The defendant demurred on the ground that the petition set forth no cause of action, and demurred specially to paragraph é of the petition, on the ground that-it is vague and indefinite, in that it fails to show the. character and extent of the disturbance referred to, and whether the disturbance was unlawful in its nature, and that it fails to name or designate the persons who were annoyed by the alleged misconduct. Paragraph 5 of the petition was demurred to on the ground that it fails to set forth or describe the method adopted by the plaintiff’s wife of feeling her way when she was compelled to feel her way down the stairs. The general and special grounds of. the demurrer were overruled, and the defendant excepted.

      Seabrook, Kennedy & McWhorter, for plaintiff in error.

      Oliver & Oliver, John Z. Ryan, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) Where injury is alleged to have been proximately caused by specified negligence on the part of a defendant, the question whether it was in fact thus brought about is one that it is peculiarly within the province of the jury to determine. In the instant ease the fall and injury of the plaintiff’s wife while going down the stairway of the defendant’s theater building is specifically alleged by the plaintiff to have been “caused by the pushing and shoving in her rear” of certain small boys. Thus, while the petition may indicate that the alleged hole in the rubber matting of the stairs, and the defective lighting of the stairway, might have contributed to. the accident, the petition nevertheless plainly indicates that the efficient proximate cause of the injury, without which it would not have happened, was the pushing and shoving mentioned. It is furthermore true that the alleged negligence in failing to check the boys in pushing and shoving in the hall is coupled with and altogether predicated upon the defendant’s knowledge of their previous boisterous and hilarious conduct during the performance. The result is that if the hilarity of the boys during the performance could not be taken as a sufficient circumstance to cause the defendant reasonably to anticipate the subsequent pushing by them in the hall, the plaintiff would not be entitled to recover. In Moone v. Smith, 6 Ga. App. 649 (65 S. E. 712), it was held that if “there is any reasonable apprehension of danger to such a customer from the unlawful conduct of other customers or third persons, or if a personal injury from the misconduct of other customers or third persons can be prevented by the proprietor by the exercise of ordinary care and diligence, he may be guilty of negligence for his failure to use it, and consequently responsible in damages.” The petition having in substance alleged that in view of the defendant’s knowledge that boisterous and hilarious customers were in the balcony, it was its duty to protect its customers from the danger incident to pushing and shoving down the. ill lighted and defectively carpeted stairway of the hall, and since it is the general rule that what in a given case constitutes ordinary care on the part of such a proprietor for the protection of its patrons is a question for determination by the jury, and not by the court (Stewart v. Mynatt, 135 Ga. 637, 640, 70 S. E. 325), this court will not disturb the judgment of the trial court overruling the demurrer.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17776.
    Clay et al. v. Austell School District.
    Appeal and Error, 3 O. J. p. 1370, n. 34; 4 O. J. p. 414, n. 71; p. 535, n. 99; p. 969, n. 56.
    Schools and School Districts, 35 Cyc. p. 990, n. 86; p. 998, n. 61 New.
   Bell, J.

1. An assignment of error, “complaining of. the admission of documentary evidence over stated objections, which does not set forth the document in form or substance, is incomplete, and fails to set forth any question for decision. Stewart v. Bank, 100 Ga. 496 (2), 501 (28 S. E. 249); Stewart v. Randall, 138 Ga. 796 (5), 797 (76 S. E. 352).” Callaway v. Beauchamp, 140 Ga. 207 (2) (78 S. E. 846); McCollum v. Thomason, 32 Ga. App. 160 (8) (122 S. E. 800). A statement in a bill of exceptions that the court erred in admitting in evidence an affidavit to prove a certain fact is a statement of the purpose for which the affidavit was offered and admitted in evidence, and not of the contents of the affidavit. Measured by these rulings, assignments of error 1, 2, 3, and 4 failed to show cause for -reversal of the judgment of the trial court, irrespective of whether in a proceeding to validate bonds, such as this, it is proper to admit evidence in the form of affidavits, over objection that the complaining party is thus deprived of the right of cross-examining the witness whose evidence is produced in such form.

Decided January 24, 1927.

2. This being a proceeding to validate bonds in a school district, the answer as made by the trustees to the petition of the solicitor-general was admitted in evidence over the objections of the plaintiffs in error, who were intervenors, that the answer was not sworn to, “and was not a legally sufficient answer as required by statute, and . . that no evidence of this kind can be admitted except under proper oath or certificate.” It appears from the record that such answer of the trustees was offered and admitted solely for the purpose of showing that the solicitor-general had filed his proceeding to validate the bonds, and that the school district had made its answer. The court, in admitting the answer in evidence, specifically ruled that admissions contained therein would not be binding upon the objectors. Held: Assuming that the court erred in admitting the answer in evidence, the objectors were not harmed by the ruling. See, in this connection, Stapleton v. State, 19 Ga. App. 36 (7) (90 S. E. 1029).

3. Assuming also that the court erred in refusing to permit the intervenors to prove that certain persons who voted in the election were ineligible for reasons variously and respectively stated, errors in excluding evidence of this nature do not require a reversal of the judgment of validation, in the absence of anything to show whether any of such persons voted in favor of bonds, and that the result of the election would have been different with the votes of such persons eliminated. Cole v. McLendon, 109 Ga. 183 (1) (34 S. E. 384); Lowrey v. Cheatham, 131 Ga. 320 (2) (62 S. E. 226). Under the above principle, there is no merit in the 6th, 7th, 8th, or 9th assignment of error.

4. In this ease there has been no bona fide effort to comply with the requirement of the Civil Code (1910), § 6093, with reference to what should be contained in a brief of evidence, and this court will not undertake to determine any question the decision of which is dependent upon a consideration of the so-called brief of evidence annexed to the bill of exceptions. This ruling applies to assignments of error 10 to 19, inclusive. Ingram v. Clarke, 96 Ga. 777 (22 S. E. 334); Tidwell v. Ala. Great Southern R. Co., 20 Ga. App. 826 (93 S. E. 511); Bishop v. Brown, 138 Ga. 738 (75 S. E. 1119); Crumbley v. Brooke, 135 Ga. 723 (2) (70 S. E. 655); American Nat. Ins. Co. v. Lee, 145 Ga. 797 (89 S. E. 836).

5. It is not shown that any material or prejudicial error was committed.

Judgment affirmed.

Jenkins, P. J., amd Stephens, J., concur.

Validation of school-district bonds; from Cobb superior court— Judge Humphries presiding. August 20, 1926.

H. B. Moss, for plaintiffs in error.

George D. Anderson, solicitor-general, Morris, Hawkins & Wallace, contra.


author: Stephens, J.

text:
    17164.
    Nix, executor, et al. v. Monroe, ordinary, for use, etc.
    Decided February 10, 1927.
    Complaint on bond; from Calhoun superior court — Judge Custer. December 17, 1925.

      A. L. Miller, for plaintiffs in error. E. L. Smith, contra.
    Appeal and Error, 4 O. J. p. 922, n. 75.
    Guardian and Ward, 28 O. J. p. 1124, n. 56 New.
    New Trial, 29 Oye. p. 1020, n. 21.
   Stephens, J.

1. An agreement by a guardian to compromise an indebtedness due to the ward is invalid in the absence of a compliance by the guardian with any of the provisions of sections 4004, 4005, and 4006 of the Civil Code (1910).

2. Where a verdict for the plaintiff in a suit on a liquidated demand is in the sum of $1,500 principal and $187.50 interest, which is excessive by $4.71 in the amount of principal and $134.87 in the amount of interest, and where it appears from the undisputed evidence that the verdict should have been for $1,495.29 principal and $52.63 interest, making a total of principal and interest in the sum' of $1,547.92, a judgment denying the defendant’s motion for a new trial and amending the verdict so as to make it find for the plaintiff $900 principal and $620 interest, and ordering that execution accordingly be issued thereon, is not harmful to the defendant. Although the amount of interest called for in the verdict as amended is in excess of the amount called for in the verdict as found by the jury, the total amount of principal and interest found in the verdict as amended, being $1,520, is less than the total amount of principal and interest, namely $1,547.92, recoverable in the verdict found by the .jury less the excess of principal and interest above indicated, and the interest accruing in the verdict as amended, by reason of the reduced principal, is less than the interest accruing in the verdict as found by the jury less $4.71 excess principal written off.

3. This being a suit by a guardian to recover upon a guardianship bond, and it appearing from undisputed evidence that the verdict as written off and amended by the plaintiff and approved by the trial judge was within the amount demanded for the plaintiff by the evidence, and the evidence demanding a finding for the plaintiff upon the question of liability, the trial court did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

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


text:
    17220.
    Fuller v. Mills et al.

    Decided February 10, 1927.
    Action for damages; from city court of Decatur — Judge Daley. January 25, 1926.
    Appeal and Error, 4 O. J. p. 650, n. 37; p. 1023, n. 49, 51.
    Negligence, 29 Oye. p. 543, n. 9, 11, 12; p. 643, n. 30.
   Stephens, J.

1. A joint enterprise by two persons riding in an automobile along a public highway, the engagement in which will impute the negligence in operating the automobile of one of the persons, who is the driver, to the other person, must be a joint enterprise in controlling, directing, and governing the operation and running of the automobile, and not merely a joint interest in the objects and purposes of the trip.

2. While a husband and wife riding in an automobile on Sunday afternoon for the purpose of taking their children for a pleasure ride and “airing” may be engaged in a joint enterprise in so far as the objects and purposes of the trip are to give recreation to their children, they are not, unless both the husband and the wife have a right to control, direct, and govern the operation and running of the automobile, engaged in - a joint enterprise in the control and operation of the automobile. Since the marriage relation gives to the wife no right to control all the movements of the husband, it can not be inferred that the wife, in riding in the husband’s automobile which is being operated by him, although they may be engaged in the joint enterprise of taking the children to ride for recreation, has any right to direct and govern the movements of the husband in the control and operation of the automobile. Under such a state of facts the negligence of the husband in operating the automobile can not be imputed to the wife.

3. Where, in a suit by the wife against the owner and operator of another automobile, to recover damages for personal injuries alleged to have been sustained by her by reason of the defendants’ automobile negligently running into the automobile driven by the plaintiff’s husband, in which she was riding, where the only evidence on which it was sought to impute the husband’s negligence to the wife was as indicated above, no issue of such imputable negligence was presented. Where, upon the trial of such a case, the judge instructed the jury that a verdict for the plaintiff might, be reduced in proportion to the plaintiff’s negligence, the various excerpts from the charge excepted to, submitting to the jury the issue as to whether the husband’s negligence was imputable to the wife, were error harmful to the plaintiff, and a verdict for the plaintiff which, under the evidence, might have been authorized for a larger amount but for the possibility of the jury’s having reduced it in proportion to the negligence of the husband imputable to the plaintiff, will, for such error, be set aside on the plaintiff’s motion for a new trial.

4. In view of the above-stated rulings, which are controlling, it is unnecessary to pass upon any of the assignments of error which do not relate to the issue of imputable negligence, as such alleged errors are not likely to be committed upon another trial.

Judgment reversed.

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

Hewlett & Dennis, for plaintiff.

McDaniel & Neely, for defendants.


text:
    17221.
    McNeel et al. v. Clark, for use, etc.
    Decided February 10, 1927.
    Complaint on bond; from Wheeler superior court — S. W. Sturgis judge pro hac vice. December 23, 1925.
    Appeal and Error, 4 O. J. p. 927, n. 40.
    Lost Instruments, 38 O. J. p. 275, n. 31 New.
    New Trial, 29 Oye. p. 786, n. 86.
    Replevin, 34 Oye. p. 1607, n. 94 New.
   Stephens, J.

1. Assuming that if, upon the trial of a suit based upon an established copy of a lost document, the afterwards-found original could be introduced in evidence to establish rights thereunder at variance with the provisions in the established copy, the,,variance between the established copy sued on in the present case and the lost original, which appears in evidence, is not substantial and can • not affect or ehange the rights and liabilities of the parties under the established copy sued upon.

2. Assuming that the lost original was a required statutory bond and that the established copy sued upon is not in form the statutory bond required, the obligations of the defendants arising under both the original and the established copy are substantially the same; and since the established copy is sued upon as a common-law obligation, the defendants can not complain upon the ground that, as the established copy sued on was not the statutory bond required, the defendants incurred no obligations under it.

3. This being a suit against the principal and the sureties upon an established copy purporting to be a copy of a forthcoming bond given by a defendant in fi. fa. on the filing of an affidavit of illegality, and it appearing from uncontradicted evidence adduced on the trial of the suit that the original was executed by the defendants, and it further appearing in the evidence, by agreement of counsel, that the condition of the bond had been breached, the trial judge did not err in directing a verdict against the defendants upon all issues except as to the amount of the plaintiff’s damage; and since the evidence authorized the inference that the plaintiff’s damage, with interest, was in the amount found by the jury, and since the amount of the fi. fa. was established by parol secondary evidence unobjected to, the verdict in the amount found for the plaintiff was authorized.

4. A refusal to grant a nonsuit at the conclusion of the plaintiff’s testimony is not ground for a new trial, where it appears from the entire evidence, including evidence subsequently introduced, that the verdict for the plaintiff was authorized.

Judgment affirmed.

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

William B. Kent, for plaintiffs in error.

R. W. Cooper, G. L. Hathaway, contra.


text:
    17240.
    Modern Woodmen of America v. Williams.
    Evidence, 22 O. J. p. 12, n. 39.
    Mutual'Benefit Insurance, 29 Oye. p. 246, n. 50; p. 251, n. 95; p. 255, n. 22.
    Trial, 38 Cyc. p. 1753, n. 42 New; p. 1778, n. 73; p. 1779, n. 75, 76.
   Stephens, J.

1. This being a suit upon a death-benefit certificate of a fraternal beneficiary society, instituted by the beneficiary named in the certificate, and the sole defense being that the insured member at the time of his death was not in good standing, by reason of failure to make the required monthly payments within the time prescribed in the certificate, and that therefore there was no liability under the policy, and the evidence presenting an issue of fact as to whether such payments had been made within the prescribed periods, the verdict for the plaintiff was authorized by the evidence.

2. There being evidence that the beneficiary named in the certificate did, on the day of the death of the member and after the member’s death, remit to 'the authorized local agent of the defendant an amount of money in payment of dues under the policy, a charge by the court, with reference to this transaction, to the effect that “the money sent . . would not be effective for any purpose and need not enter into the consideration of the jury,” and that such payment or an attempt to make such payment “would not have been effective and would not have the effect of reinstating the policy if the policy had lapsed by reason of nonpayment of dues prior to that time,” must necessarily be construed as instructing only that such payment would not be effective for the purpose of reinstating the policy. Such a charge could not be construed as eliminating any consideration of that payment as being evidentiary of an admission on the part of the plaintiff that the dues required of the insured member had not been paid, and that the member, at the time of his death, was not in good standing. It was calculated to impress the jury only with the fact, stated in the charge, that such payment could not have the effect of reinstating the policy. The charge therefore was not prejudicial to the defendant.

3. Irrespective of which party to the controversy may be required to carry the burden of proof, and although the other party is not required to establish his defensive matter by a preponderance of evidence' in order to prevail, it is nevertheless a legal, truism that the party who does in fact establish his contentions by a preponderance of evidence is entitled to prevail. A charge, therefore, to the effect that the jury should find in favor of that party in whose favor the preponderance of evidence lies states a correct principle of law, and is not error upon the ground that the court should have charged in addition that if there was no preponderance of the evidence, but if the evidence was evenly divided as to weight, the defendant should prevail.

Decided February 10, 1927.

Complaint on insurance policy; from Jeff Davis superior court —Judge Highsmitb. January 13, 1926.

Robert G. Plunlcett, for plaintiff in error.

Gordon Knox, J. O. Bennett, contra.

4. A provision in such a beneficiary certificate that the beneficiary named therein shall, in case of the member’s death while in good standing, be entitled to participate in the benefit fund of the society to the amount of three thousand dollars, “without interest,” limits the right of the beneficiary to recover interest upon the moneys in the benefit fund up to the time of the death of the member and the accrual of liability to the beneficiary. under the policy, and does not limit the right of the beneficiary to recover legal interest upon the face value of the policy from the date of the accnial of liability to the beneficiary.

5. The court fairly submitted all the issues presented, and none of the special grounds of the motion for a new trial shows error.

6. The verdict finding .for the plaintiff in the' amount representing the benefit accruing under the policy and seven per cent, interest thereon from the date of the establishment of proof of death under the terms of the policy was authorized.

Judgment affirmed.'

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


text:
    17251.
    Atlanta Trust Company v. Oliver-McDonald Company.
    Chattel Mortgages, 11 O. J. p. 443, n. 71; p. 725, n. 45.
    Crops, 17 C. J. p. 383, n. 48; p. 384, n. 76 New.
   Stephens, J.

1. Where there has been no division of the crop between the landlord and the cropper and where the cropper’s portion of the crop has not been set aside, and thus the cropper has not received his part of the crop, no title to the crop passes into him, although he may have settled with the landlord for all advances made. Civil Code (1910), § 3705; DeLoach v. Delk, 119 Ga. 884 (47 S. E. 204); Harley v. Davis, 7 Ga. App. 386 (66 S. E. 1102). It follows, therefore, that where the crop is purchased from the landlord under an agreement with him that out of the purchase-money paid to him he is to settle with the cropper, and where, out of the proceeds thus derived, he settles in full with the cropper, such settlement amounts only to a satisfaction of the cropper’s lien upon the crop, and is not a transaction whereby the cropper passes any title to the crop or by which theo purchaser acquires any title to it coming out of the cropper. In this case- title to the crop never passed out,of the landlord into the cropper, but passed only out of the landlord into the purchaser, and the purchaser took the property subject to an existing mortgage lien thereon created by the landlord of which the purchaser had notice.

2. This being a proceeding by the mortgagee against the landlord to foreclose the mortgage, where the purchaser of the crop from the landlord filed a claim of title to the property levied upon, the court, under the undisputed evidence, properly directed a verdict for the plaintiff, finding the property subject to the mortgage.

Decided February 10, 1927.

Levy and claim; from city court of Americus — Judge Harper. February 23, 1926.

STATEMENT OE FACTS BY STEPHENS, J.

On April 10, 1924, O. T. Bagwell executed a chattel mortgage to Oliver-MeDonald Company, covering his crops of cotton, corn, etc., “now growing and to be grown on my farm in Sumter County, Georgia, and all other lands cultivated by me with children, tenants or laborers.” The mortgage was duly recorded on April 11, 1924. In the fall of that year certain bales of cotton grown on the farms operated by O. T. Bagwell, and including cotton grown by his croppers, were placed in warehouses in Plains, Georgia, and receipts therefor taken in his name. Certain of these cotton receipts were transferred by him to the Atlanta Trust Company, as security for advances made to him by that company, to be used in settling with his croppers. On November 10, 1924, the mortgagee instituted proceedings to foreclose the mortgage, and certain of the mortgaged bales of cotton were levied upon as the property of the mortgagor, and the Atlanta Trust Company filed claim of title to the cotton levied upon. It appears from undisputed evidence that no actual division of the cotton was made and that no portion of the crop was set aside as belonging to the croppers, but that Mr. Bagwell settled in full with his croppers, paying them in cash the balance due them after making deductions for supplies furnished‘them. The court directed a verdict for the plaintiff. The claimant's motion for a new trial, based upon the general grounds and excepting to the direction of the verdict, was overruled, and the claimant excepted.

R. L. Maynard, for plaintiff in error.

J. A. Hixon, Ellis, Webb & Ellis, contra.

Judgment affirmed.

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


text:
    17274.
    Winder National Bank v. Hendrix.
    Decided February 10, 1927.
    Levy and claim; from Barrow superior court — Judge Stark. February 5, 1926.

      J. C. Pratt, for plaintiff. G. A. Johns, contra.
    Chattel Mortgages, 11 O. J. p. 468, n. 35, 36; p. 479, n. 94 New; p. 510, n. 68; p. 538, n. 32; p. 539, n. 36; p. 725, n. 45; p. 728, n. 97 New.
   Stephens, J.

1. The following description of personalty, contained in a chattel mortgage, is a sufficiently definite identification of the property, as respects the crops of cotton referred to therein, to constitute notice to a third person of the identity of the crops of cotton as described in the mortgage: “All my crops now growing and under cultivation by me, also my interest in crops of tenants and croppers on W. D. Hendrix farm in Bethlehem district, Barrow county, consisting of about 12 acres in cotton and about 12 acres in corn and about . . acres in other products.”

2. Where, upon the foreclosure of a mortgage executed July 17, 1924, containing the foregoing description of the property mortgaged, the levy recited that “eight bales of lint cotton in warehouse of W. D. Hendrix in Bethlehem; Georgia,” were levied upon as the property of the defendant in execution, evidence adduced upon the trial of a claim to the property, filed by a third person, that two bales of the cotton levied upon were made by the mortgagor on the farm of W. D. Hendrix in Bethlehem district, Barrow county, during the year 1924, and that the remainder of the cotton levied upon belonged to the claimant and was not covered by the mortgage, constituted sufficient data from which two of the bales of cotton levied upon could be identified as the cotton raised upon the W. D. Hendrix farm and covered by the mortgage.

3. An officer, — as the president, — of a corporation is competent as a nonofficial attesting witness to the mortgagor’s signature to a mortgage on personalty executed to the corporation as mortgagee. Hastey v. Roberts, 149 Ga. 479 (100 S. E. 569); Peagler v. Davis, 143 Ga. 11 (3) (84 S. E. 59, Ann. Cas. 1917A, 232).

4. Where, upon the trial of such a claim case, it appeared from the record of the mortgage in the office of the clerk of the superior court, admitted in evidence, that the execution of the mortgage was attested by a person as a nonoffieial witness, and that the affidavit probating the execution of the mortgage was made by the witness before an officer authorized to administer oaths, the mortgage appeared to be legally entitled to record, and such record was sufficient to constitute constructive notice of the mortgage.

5. Applying these rulings to the evidence adduced, it appears that the claimant purchased the property with constructive notice of tlie mortgage, and that the evidence at least authorized, if it did not demand, a verdict in favor of the plaintiff in fi. fa., finding the two bales of cotton, produced by the defendant in execution upon the W. D. Hendrix farm during the year 1924, subject to-the execution; and the trial judge erred in directing a verdict for the claimant.

Judgment reversed.

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


author: Jenkins, P. J. Stephens, J.,

text:
    17340.
    STEPHENS v. LIQUID CARBONIC COMPANY.
    “In all counties of this State, either party litigant in any court of record in any such county may, -without any order or commission, take the deposition of any witness or witnesses in said ease, whether resident in the county or not, upon giving the opposite party five days notice of the time and place, with the names of tne witnesses. . . Any witness or party refusing to produce, appear, or answer, without legal excuse, shall be guilty of contempt; and upon certification of said act by the commissioner to the judge in whose court the ease is pending, the judge shall punish the same as though committed before him.” Civil Code (1910), § 5910. The word “witness,” as employed in this section of the code, includes parties to an action who are competent and compellable to “testify on the stand on the trial of the ease, or who could be compelled to answer interrogatories regularly sued out.” Oreech v. Ossep, 149 Ga. 577, 578 (105 S. E. 289). Accordingly, a party to a pending action who is a competent and compellable witness, who is served with proper notice for the taking of his depositions before a court commissioner, and who appears before the commissioner and refuses to answer any proper questions that may be propounded to him, upon the sole ground that he does not come within any of the classes of witnesses whose interrogatories may be taken as provided by section 5886 of the Code of 1910, is guilty of contempt, and, upon the proper certification of these facts to the judge of the court in which the case is pending, may be punished for contempt as provided in the code section quoted above. Oreech v. Ossep, supra; McAlpin v. Ryan, 150 Ga. 746 (101 S. E. 576).
    Decided February 10, 1927.
    Rule against attorney; from Laurens superior court — Judge Camp. March 20, 1926.
    Stephens was the defendant in the superior court of Laurens county, in which the Liquid Carbonic Company was plaintiff. On March 12, 1925, the plaintiff served notice on Stephens that on March 17, 1925, his testimony would be taken as a witness for the plaintiff before a named commissioner. On the day named, Stephens appeared before the commissioner and refused to testify, on the ground that he was a resident of Laurens county, in which the suit was pending, and a practising attorney of the superior court, that he had been present at each term of court since the filing of the suit, that he was in good health and able to respond to a subpoena in the case, that he lived within the jurisdiction of the court and by a summons could be compelled to appear at any term of the court, and that the plaintiff’s effort to take his deposition was not in good faith or for the purpose of using his testimony, but solely for the purpose of ascertaining his defense to the pending action, in order that it might be met by pretended evidence. The judge of the superior court of Laurens county cited Stephens for contempt, and on the hearing the rule was made absolute and a fine assessed against him; and to this he excepted.

      Contempt, 13 C. J. p. 26, n. 86.
    Depositions, 18 C. J. p. 611, n. 19, 22; p. 630, n. 48, 49; p. 645, n. 58; p. 681, n. 92; p. 682, n. 7.

      T. P. Stephens, pro se. C. C. Crockett, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) If the proceeding had been one to take interrogatories under section 5886 of the Civil Code of 1910, or to take depositions before a notary under section 5905, the contentions of the defendant might have been urged with a degree of force, on the theory that any such proceeding to take his testimony was illegal, and he should not be held in contempt for refusing to obey an unauthorized mandate of the court. It has been held that it is not contempt of court for a witness who is being examined by interrogatories to refuse to answer illegal or impertinent questions which would not be admissible on the trial in court. Fenn v. Georgia Ry. & Elec. Co., 122 Ga. 280 (50 S. E. 103). The proceeding to take the evidence of the defendant was not, however, based upon the provisions for interrogatories as outlined by section 5886, nor was it a proceeding to take depositions before a notary under section 5905, but it was a proceeding to take depositions before a court commissioner, as provided by section 5910 of the Civil Code. In such a proceeding the right to take evidence does not seem to be limited as in the case of interrogatories, or as in the case of depositions before a notary public upder section 5905, but the statute here resorted to specifically provides that either party litigant may “take the depositions of any witness or witnesses in said case, whether resident in the county or not;” and the Supreme Court, in the case of Creech v. Ossep, 149 Ga. 577 (101 S. E. 576), held that “the word ‘witness’ as employed in the caption and the first section of the act approved December 20, 1898 (Acts 1898, p. 56), which amends section 5315 of the Code of 1895 (§ 5910 of the Code of 1910), relating to the taking of depositions, includes parties to an action who are competent and compellable to give evidence.” In the Creech case the defendant contended, as it is here contended, that the “plaintiff was seeking to discover from him as the defendant by depositions, which is not the legal way prescribed by law.” In the opinion in that case the Supreme Court said: “Two questions are raised for decision in this case. One is whether a party to a suit is a witness within the meaning of that term as used in section 5910 of the Civil Code, providing that either party litigant in any court of record in certain counties may take the depositions of a witness in the case. The term 'witness/ as here employed, the context being considered and the purposes of the act looked to, is broad enough to include any competent and compellable witness in any of the cases referred to in the statute who could be compelled to testify on the stand' on the trial of the case, or who could be compelled to answer interrogatories regularly sued out.” (Italics ours.) The proceeding being one for the taking of depositions before a court commissioner, and not being one for the taking of interrogatories, or for the taking of depositions before a notary public, and the defendant as a party being a competent witness who could be compelled to testify on the trial of the case, under the broad language of the statute resorted to and under the ruling of the Supreme Court in the Creech case, the judge did not err in overruling the contentions of the defendant in the contempt case.

The bill of exceptions makes the point “that the court was without jurisdiction to adjudge him in contempt, no questions being propounded to him before the commissioner.” This contention does not appear to have been set forth by the defendant’s answer to the rule for contempt, and apparently has been abandoned, as no reference is made to it in his brief, and there is no general insistence -upon all the grounds set forth in the bill of exceptions. Irrespective of this, however, the first paragraph of the defendant’s answer in the contempt proceeding sets forth that “defendant did appear before E. S. Baldwin, clerk of Laurens superior court and ex-officio commissioner to take testimony, and that defendant refused to testify in any manner not with any desire or intention to be disrespectful or in any wise being in contempt of this or any other court, but defendant failed and refused to answer any questions that might have been propounded to him by C. C. Crockett, attorney for plaintiff,” for the reasons thereinafter set forth, which have been already referred to. Since it appears that the defendant refused to submit himself to the jurisdiction and authority of the court, “to testify in any manner,” and “to answer any questions that might have been propounded to him,” it does not seem'that he could now insist that he should not be adjudged in contempt on •the theory that the questions which were to be propounded might perhaps have been irrelevant. If he had submitted to the mandate of the court, and had refused to answer any question actually irrelevant or impertinent, he could not, under the authority already cited, have .been adjudged in contempt, but where, as here, he notifies the commissioner in advance that he.refuses to “testify in any manner” or to “answer any questions,” it would be a futile thing to go through the procedure of interrogation to which the defendant has already refused to submit.

The judge having passed the following order: “Upon hearing the within rule, the same is made absolute, and the said T. P. Stephens is fined $25.00 for contempt of court, to be discharged on his appearing before the commissioner within fifteen days and answering depositions on notice being given by plaintiff, with supersedeas granted on filing of bill of exceptions,” and the bill of exceptions, under the terms of the order, having thus operated as a supersedeas, the status of the case upon its being here affirmed is that the defendant will become liable to the payment of the fine upon his failing to respond and answer after fifteen days notice from the plaintiff, subsequent to the making of the remittitur the judgment of the court below.

Judgment affirmed.

Bell, concurs.

Stephens, J.,

dissenting. The record does not appear to be complete. The attachment for contempt does not appear of record. Nor does there appear to be any brief of the evidence adduced" upon the hearing. There appears a recital in the bill of exceptions that the respondent, T. P. Stephens, “appeared at the time and place before the commissioner named in said notice, that no questions were propounded to him by plaintiff’s counsel,” and the respondent “advised the commissioner and the attorney for plaintiff that he would not answer any questions.” It may be assumed, therefore, that upon the hearing of the contempt proceedings before the judge of the superior court it appeared conclusively that no questions had been propounded to the respondent when he appeared before the commissioner. While the answer of the respondent to the attachment for contempt, which answer is of record, does not expressly state that no questions were propounded to the respondent before the commissioner, it is clearly inferable from the' answer that no questions were propounded, as it is alleged in the answer that the respondent “failed and refused to answer any questions that might have been propounded to him by C. C. Crockett, attorney for plaintiff,” for the reason that the respondent, as a party to the case, could not be forced to give evidence before the commissioner. While the answer of the respondent does not expressly allege, as a ground why he should not be adjudged in contempt, that no questions were propounded to him, the answer sets up what occurred before the commissioner, namely, that the respondent “refused to answer any questions that might be propounded to him.” This inferentially alleges that no questions were in fact propounded to the respondent. The answer therefore must be construed as setting up the defense that under the facts alleged therein the respondent was not guilty of contempt. Since it appears from the record that no questions were in fact propounded to the respondent, he must necessarily have been adjudged in contempt for a refusal to answer questions before the commissioner when in fact no questions were propounded to him.

It clearly appears, therefore, from the record, that there is presented the issue as to whether the respondent was guilty of contempt in stating to the commissioner that he would not answer any questions propounded to him before the commissioner, when in fact no questions whatsoever were propounded to'him. In the bill of exceptions error is assigned upon the ground that the respondent was not guilty of contempt, because no questions had been propounded to him before the commissioner. While the respondent, as plaintiff in error, does not in his brief and argument expressly insist upon this ground of error, yet, as the question is presented in the record and the bill of exceptions, this court is justified in passing upon the question. Civil Code (1910), § 6183. The rule that this court will not decide any question not insisted upon in the brief of counsel for the plaintiff in error is not, as I understand it, mandatory upon the court, but the court may, when in its opinion the justice of the case demands, reverse a judgment upon any ground properly presented by the record, although not insisted upon in the brief and argument for the plaintiff in error. See Laffitte v. State, 105 Ga. 595 (1) (31 S. E. 540), and rules 14 and 15 of the Court of Appeals, Civil Code (1910), §§ 6338, 6339.

I am of the opinion that there can be no contempt on the part of a witness for a failure to answer questions when no question has been propounded to the witness. I am also of the opinion that a mere refusal by the witness to answer a question propounded to him on the stand, after' an oath has been administered to him, can not of itself be a contempt. No contemp’t could arise until the witness refused to obey a mandatory judicial order to answer the question. If a witness appeared in response to a subpoena and refused to take the oath when called upon, he might, after having been ordered by the court to take the oath, although no questions were propounded, be adjudged in contempt for a failure to obey the order to take the oath. If a witness, as in the case of the respondent, appeared before the commissioner in response to a subpoena, and, before being sworn, stated before the commissioner that he would answer no question that might be propounded to him, it certainly would seem that he could not be held in contempt unless he were afterwards ordered to make answer, and an order to make answer to such questions as might be propounded to the witness could not be subject to disobedience until some question was propounded. It seems, therefore, that a mere promissory statement by the respondent, made when appearing before the commissioner in response to a subpoena as a witness, that he would not answer any question that might be propounded to him in the ■hearing before the commissioner, does not, when no question was in fact propounded to the respondent, amount to a contempt.

A witness is not legally required to answer every question that may be propounded to him. Some questions propounded may seek answers that would be irrelevant or that the respondent might be privileged to refuse to answer. A witness before a commissioner is not in contempt for failure to answer a question which is totally irrelevant to the case. Fenn v. Georgia Ry. & Elec. Co., 122 Ga. 280 (2) (50 S. E. 103). A failure of a witness to answer a question which he could legally refuse to answer, upon the ground that the answer might tend to incriminate him (Civil Code, § 6362), would hardly subject him to punishment for contempt.

It is conceivable that every question which would have been propounded to this respondent before the commissioner would have been irrelevant and that he would not have been in contempt, under the ruling in Fenn v. Georgia Ry. & Elec. Co., supra, in refusing to answer them. It is possible that the respondent would have been privileged to refuse to answer any question that would have been propounded to him. Let it be supposed that, after the respondent had made his promissory declaration that he would not answer any questions that would be propounded to him, certain questions had in fact been propounded to the respondent which he could have legally refused to answer. His, refusal to answer such questions certainly would not have rendered him in contempt. Could it then be said that his former declaration of refusal to answer any questions that might be propounded to him would render him in contempt ? I think not. Now then can the respondent be in contempt for making the same declaration of refusal when in fact no questions were afterwards propounded to him?

I disagree with my colleagues that the statement of the respondent before the commissioner that he would not answer any questions that might be propounded amounted to a waiver by the respondent of his right to have questions propounded to him before he could be adjudged in contempt for his failure to answer questions, upon the ground that no specific questions were propounded to him. The respondent, in his dealings with the commissioner, was not dealing as with a party to a contract whose rights might be affected by the respondent’s conduct, where the respondent, by virtue of his dealings with the opposite party, might be held to have waived his rights or to be equitably estopped from asserting them. The respondent, in answering the subpoena to appear before the commissioner, was not a party to a contract with the commissioner or with the opposite party to the case, or with the latter’s attorney, but the respondent was a witness responding to a subpoena, 'and was dealing with a court. It can not be said that the respondent, by his conduct in stating that he would not answer any questions propounded, waived any right which he may have had to have questions propounded to him before he could be adjudged in contempt upon the ground of failure to answer questions propounded to him before the commissioner.

I am therefore of the opinion that the respondent, when making the declaration that he would not answer any questions which might be propounded to him before the commissioner, when in fact no questions whatsoever were propounded to him, can not be legally adjudged in contempt, and that therefore the judgment adjudging the respondent in contempt should-be set aside. 13 C. J. 25, § 32.


text:
    17375.
    Parker & Dunn v. State of Georgia.
    Decided February 10, 1927.
    Confiscation; from city court of Bichmond county — Judge Black. April 1, 1926.
    Application for certiorari was made to the Supreme Court.
    STATEMENT OE FACTS BY STEPHENS, J.
    A petition to condemn an automobile as the property of C. B. Wellmaker, upon the ground that it had been seized while engaged in the transportation of alcoholic liquors on a public highway in this State, was filed on November 5, 1925, in the city court of Bichmond county in behalf of the State of Georgia by W. Inman Curry, solicitor of the court. .On the same day the plaintiff filed in the same court a petition for a “short-order” sale of the automobile seized, upon the ground that its upkeep was expensive, as provided in section 6068 of the Civil Code (1910). On November 6, 1925, Parker & Dunn filed in the same court an intervention, claiming title to the automobile as vendors- under a retention-of-title contract of sale, and alleging that they had no knowledge that the automobile had been engaged in the transportation of alcoholic liquors, and had not consented to its being so engaged. It appears from the record that an order passed on November 20, 1925, sustained the claim .of title of the interveners and awarded to the interveners a valid lien on the automobile to the extent of the unpaid purchase-money and interest. On the same date another order was passed, directing that the property be sold on December 3, 1925, before the court-house door of the county, after ten days’ notice by the posting of a notice at the court-house and at two other public places in the county. The property was sold at the time and place designated. On or about December 31, 1935, the interveners, Parker & Dunn, filed in the same court a motion to set aside the sale, on the ground that they had received no notice of the application for a “short-order” sale, and that for this reason the order of sale and the sale thereunder were illegal and not binding upon the interveners.

      Intoxicating Liquors, 33 O. J. p. 685, n. 46 New.
   Stephens, J.

One who files an intervention claiming title to a vehicle against which condemnation proceedings have been instituted under the act which provides for the condemnation of vehicles transporting prohibited liquors along the public highways (Act 1917, Ex. Sess., p. 16) is chargeable with notice of an application, already of file in the same court, for a “short-order" sale of the property under section 6068 of the Civil Code (1910).

Judgment affirmed.

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

TJpon the hearing of this motion evidence was introduced. It did not appear that any notice of the filing of the application to sell the automobile had been served upon the interveners, but it did appear that upon the day the application for sale was filed the solicitor of the court wrote a letter to the attorney for the interveners, in which he informed their attorney that he was that day filing proceedings to condemn the automobile and was also applying for “a quick-order sale.” The solicitor testified that when the order sustaining the intervention and awarding title to the interveners was passed it was understood by their counsel that the order of sale, which was passed the same day, was to be passed. The court overruled the motion to set aside the judgment, and the movants excepted.

Paul T. Chance, for plaintiffs in error.

W. Inman Curry, solicitor, contra.


text:
    17430.
    Moncrief v. Atlanta & Lowry National Bank.
    Bills and Notes, 8 O. J. p. 425, n. 12; p. 443, n. 94; p. 477, n. 16.
    Novation, 29 Cyc. p. 1131, n. 13 New.
    Pledges, 31 Cyc. p. 854, n. 85.
   Stephens, J.

1. Since the whole includes a part, and since a promise to pay a certain sum of money includes a promise to pay a part of it, the payment of a part of the principal by the maker of a promissory note and the execution by him of a new note to the payee, in which the time of payment is extended, for the balance due on the principal, at the same rate of interest, constitutes a renewal of the obligation contained in the old note, and is therefore not a novation.

2. It follows that title to collateral placed by the debtor with the creditor to secure 'the original note is not divested by the renewal of the original note at a reduced amount. Partridge v. Williams, 72 Ga. 807; Lowry National Bank v. Fickett, 122 Ga. 489 (50 S. E. 396).

3. Where in such a case the collateral held by the creditor consisted of promissory notes toward which the creditor stood in the relation of a transferee in due course without notice, the creditor was not, upon a renewal of the principal indebtedness and the execution by his debtor of a new note repledging the collateral, after the notes which were pledged as collateral became due, placed in the position of a transferee after maturity who is subject to all the defenses of the maker against the payee of the collateral notes. In a suit by the creditor, as transferee of the notes pledged as collateral, against the maker of the notes, in which the defendant pleaded certain defenses amounting to payment against the payee of the notes, a verdict finding against such plea and in favor of the plaintiff for the full amount sued for was demanded.

Decided February 10, 1927.

Certiorari; from Fulton superior court — Judge Humphries. April 19, 1926.

George P. Whitman, for plaintiff in error. J. II. Porter, contra.

4. The judge of the superior court properly refused to sanction a petition for certiorari, brought by the defendant, excepting to a judgment of the appellate division of the municipal court of Atlanta affirming the overruling of a motion for a new trial filed by the defendant.

Judgment affirmed.

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