text:
    18815.
    MILNER v. FIRST NATIONAL BANK OF WAYNESBORO.

      Decided October 12, 1928.

      Lewis & Lewis, Cohen & Gray, for plaintiff in error.

      Fullbright & Burney, contra.
   Bell, J.

There lived on the farm of J. C. Palmer in Burke county two negroes whose names were Sam Hollis and Rip Gordon. Hollis stole from Palmer, his employer, two bales of cotton and sold the same as his property to M. S. Michel, a cotton buyer in the city of Waynesboro, receiving therefor MichePs check for $216.05. In selling the cotton Holíis represented himself to be “Rip Gordon,” and directed that the check be made payable to •him in that name. He carried the check so drawn to a store of which A. S. Milner ivas manager, and, after making certain purchases, indorsed the check in the name of “Rip Gordon” and negotiated it to Milner for cash, less the amount of the purchases. Michel had no acquaintance with or knowledge of either Hollis or Gordon, and in buying the cotton believed that he was dealing with a person whose name was Rip Gordon, although intending that the one to whom the .check was delivered should indorse it and receive the money thereon. Milner, in accepting the check from Hollis, had no notice of the fraud practiced by him, but had the same belief as Michel as to the name and identity of the person dealt with. Palmer, the owner of the cotton, undertook at once to recover it from Michel, and succeeded in doing so. Michel, on discovering that the cotton purchased by him was stolen property, attempted to stop payment of the check, by notice to the bank. This notice was received by the bank after it had paid the amount of the check to Milner, but before it had charged the same upon its books to its customer Michel.

In these circumstances, and without others transpiring, the bank brought suit against Milner to recover the amount of the check which it had paid to him as indicated above, alleging in the petition that the “indorsement of Rip Gordon was a forgery,” and that by reason of this fact the defendant was bound to restore to the bank the amount which he had received thereon. The defendant denied that the indorsement was a forgery and denied indebtedness, At the close of the evidence upon the trial, the facts appearing as above stated, the court directed a verdict in favor of the plaintiff for the amount sued for. The defendant brings the case to this court by bill of exceptions complaining that the court' erred in making such direction.

It seems to us that the law and the justice of this case are on the side of Milner, the defendant. Under the facts appearing, the loss resulting from the acts of Hollis, the impostor, should fall upon Michel, and to permit a recovery by the bank in the instant case is to allow a shifting of this loss to another person, who in accepting the check acted innocently and did only what Michel intended should be done. It wvas Michel who bought the cotton and issued the cheek and thus put it in the power of Hollis to go out into commercial channels and to procure from another money to which he was not entitled. Both Michel and Milner appear to have acted in good faith. But where one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury must bear the loss. Civil Code (1910), § 4537.

A case very similiar to the one at bar is that of Montgomery Garage Co. v. Manufacturers’ &c. Ins. Co., 94 N. J. L. 152 (109 Atl. 296, 22 A. L. R. 1224), in which the Court of Errors and Appeals of New Jersey held: “Where the drawer of a check delivers it, for a consideration which turns out to be fraudulent, to an impostor under the belief that he is the person whose name he has assumed and to whose order the check is made payable, a bona flde holder for a valuable consideration paid to the impostor upon his indorsement of the payee’s name is entitled to recover from the drawer; it appearing that the person to whom the check was delivered was the very person whom the drawer intended should indorse it and receive the money, and that the drawer made no inquiry before issuing the check concerning the identity or credit of the named payee, who was unknown to the drawer.” In the opinion in that ease is a very thorough discussion of the principles applicable in a case of this sort, with a statement of distinctions and exceptions. Many cases are cited in support of the conclusion reached. Other cases are collected in a note in 22 A. L. R. 1224, supplemented in 52 A. L. R. 1326. See also Uriola v. Twin Falls Bank, 37 Idaho, 332 (215 Pac. 1080); Missouri Pac. R. Co. v. Cohn, 164 Ark. 335 (261 S. W. 895); Winters National Bank v. Roberts, 20 Ohio Dec. 690; Hoffman v. American Exchange National Bank, 2 Neb. 217 (96 N. W. 112); Mercantile National Bank v. Silverman, 148 App. Div. 1 (132 N. Y. S. 1017), affirmed in 210 N. Y. 567 (104 N. E. 1134); McCornack v. Central State Bank, 203 Iowa, 833 (211 N. W. 542, 52 A. L. R. 1297).

It is onr opinion that the principles applied in the Montgomery case, supra, axe sound, and that they are applicable in the case under review. This is not a case of a forged indorsement, as was the case of Yatesville Banking Co. v. Fourth National Bank, 10 Ga. App. 1 (72 S. E. 528), and we think there is no Georgia case directly in point. Compare Atlanta National Bank v. Burke, 81 Ga. 597 (1, 2) (7 S. E. 738, 2 L. R. A. 96); First National Bank v. Harris, 25 Ga. App. 667 (104 S. E. 574); Hutcheson Hardware Co. v. Planters State Bank, 26 Ga. App. 321 (105 S. E. 854); Farmers Bank v. Bank of Abbeville, 29 Ga. App. 472 (116 S. E. 204).

The trial judge was, of course, not authorized to direct a verdict in favor of the plaintiff unless, under the facts, no other verdict could lawfully have been returned. Since the verdict in favor of the plaintiff was not demanded, the court erred in directing the jury to find in favor of that party.

Judgment reversed.

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


source: Caselaw Access Project

author: Bloodwor.th, J.

license: Public Domain

text:
    18863.
    LIFSEY v. FINN et al.

    Decided October 2, 1928.
    Rehearing denied November 13, 1928.

      M. II. Blackshear, John B. L. Smith, Joseph LeConte Smith, George A. Pindar, for plaintiff.

      J. S. Adams, C. C. Grochett, for defendants.
   Bloodwor.th, J.

(After the foregoing statement of facts.) The defendants allege in their answer in the instant ease that they were relieved as codefendants in the ejectment suit instituted by the plaintiff against Stephens and Sanders; but there is nothing to show that they were relieved from their warranty in the deed they had given to the plaintiff, and they did not allege and nothing in the record shows that they were denied the privilege of participating in said ejectment suit, and thereby defending the title which they had made to the plaintiff. On the contrary, they were vouched into court and invited to participate in the trial of the ejectment case with full notice that they were so vouched because, as plaintiff stated: “I hold the described land under your warranty of title; you are hereby called upon to appear and prosecute the said action named.” The possession of this 150 acres was yielded by the plaintiff in consequence of the result of this ejectment proceeding of which the warrantors had notice and which they had an opportunity to defend. See Civil Code (1910), §§ 5821, 4197; Wimberly v. Collier, 32 Ga. 13; Taylor v. Allen, 131 Ga. 416 (62 S. E. 291); Ashburn v. Watson, 8 Ga. App. 566 (1) (70 S. E. 19).

In the warranty deed t'o the 500 acres of land from Finn and Mrs. Pritchett to Lifsey is the following: “To have and to hold the said bargained premises, with all and singular the rights, members and appurtenances thereto appertaining, to the only proper use, benefit and behoof of himself, the said C. L. Lifsey, his heirs and assigns, in fee simple; and the said J. M. Finn and Mrs. Willie McL. Pritchett, executrix of the estate of T. J. Pritchett, the said bargained premises unto the said C. L. Lifsey, his heirs and assigns, against the said J. M. Finn and Mrs. Willie McL. Pritchett, executrix of the estate of T. J. Pritchett, their heirs and assigns, and against all and every other person or persons, shall and will and forever defend by virtue of these presents (Italics ours.) C. L. Lifsey, the grantee in this deed and the plaintiff in the trial court, was not the husband of Mrs. Emma A. Lifsey, who conveyed the 150 acres, and did not live in the same town with her; and he denies that he had any knowledge of the previous conveyance of this 150 acres. However, conceding that Lifsey, when he accepted this warranty deed to the 500 acres, was aware of all the transactions relative to this land which are shown by the record, this court finds nothing in the evidence to take the case out of the statutory rule laid down in the Civil Code (1910), § 4195, which is as follows: “A general warranty of title in a deed against the claims of all persons covers defects in the title though known to the purchaser at the time of taking the deed.” See, in this connection, Allen v. Taylor, 121 Ga. 841 (2) (49 S. E. 799), and citations; Peters v. Miller, 154 Ga. 500 (1) (114 S. E. 640), and citations; Foute v. Elder, 109 Ga. 713 (35 S. E. 118); Gragg v. Richardson, 25 Ga. 566 (71 Am. D. 190); Miller v. Desverges, 75 Ga. 407.

It must indeed be a strong case to authorize a court to say that a warranty deed does not warrant the title to the property conveyed; and there is no legal, valid evidence to support the contention of the defendants that the plaintiff accepted the warranty in the deed “with the full knowledge that it was waived in so far as it referred to the 150 acres,” or that the “plaintiff agreed that it should be waived.”

The court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Dulce, J., concur.


author: Luke, J. Luke, J.

text:
    19036.
    KINGSTON v. THE STATE.
    Decided October 2, 1928.
    Rehearing denied November 13, 1928.

      E. A. Allen, for plaintiff in'error.

      John A. Boylcin, solicitor-general, J. W. LeOraw, John E. End-son, contra.
   Luke, J.

W. R. Kingston was convicted under an indictment charging him with involuntary manslaughter, in that he ran down and killed J. E. Wilkins on Lucile Avenue, a public street in the City of Atlanta, with an automobile, which was at the time being driven on the wrong side of the street and at an excessive rate of speed, in violation of sections 21 and 53 of the ordinances of the City of Atlanta.

1. Upon conflicting evidence the jury had the right to conclude that the defendant was guilty as charged; and this court can not say that the trial judge erred in overruling the general grounds of the motion for a new trial.

2. The ground of the motion for a new trial based upon alleged newly discovered evidence is defective, (1) because the affidavits in support of the witnesses upon whose alleged newly discovered evidence a new trial is sought fail to name any associate of such witnesses (Civil Code (1910), § 6086; Hart v. State, 36 Ga. App. 673 (2), 137 S. E. 798; Ivey v. State, 154 Ga. 63 (6), 113 S. E. 175); Crosby v. State, 34 Ga. App. 235) (128 S. E. 817), and (2) because the bare recital in the affidavit of movant that said evidence could not have been discovered before trial*and conviction by the exercise of ordinary diligence is a mere conclusion, and not binding upon the trial judge. Hart v. State, supra; Taylor v. State, 132 Ga. 235 (3) (63 S. E. 1116); Tyre v. State, 35 Ga. App. 579 (134 S. E. 178). Furthermore, the alleged newly discovered evidence was largely cumulative, and the affidavits for the defendant were contradicted in material matters by the counter-affidavits of the State. In these circumstances this court can not say that the judge abused his discretion in overruling the ground of the motion for a new trial based upon alleged newly discovered evidence. In this connection see Bradford v. Brand, 132 Ga. 642 (64 S. E. 688); Hayes v. State, 16 Ga. App. 334 (85 S. E. 253).

Judgment affvrmed.

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

ON MOTION iron REHEARING

Luke, J.

The only contention in the motion for rehearing is that no certified copy of the ordinance of the City of Atlanta which the accused was convicted of violating was in the record transmitted to this court, and, therefore, this court (not being authorized to take judicial cognizance of the existence of a municipal ordinance) had no evidence before it to show the existence of such an ordinance. This contention is without merit. The record shows, without dispute, that a certified copy of the ordinance in question was admitted in evidence. It is true that, through some oversight, the certified copy was not transmitted with the record to this court. However, the record affirmatively shows that the certified copy of the ordinance admitted in evidence was a copy of the same ordinance which the accused was charged with having violated, and that the provisions of that ordinance were set forth specifically in the indictment. The record, therefore, clearly shows not only that a certified copy of the ordinance was introduced in evidence, but what were the provisions of the ordinance. Under such circumstances this court certainly did have evidence before it not only of the existence of the ordinance but of the specific provisions thereof.

Rehearing denied.

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


author: Luke, J.

text:
    19057.
    CITY OF DAWSON v. TERRELL COUNTY.
    Decided October 2, 1926.
    Rehearing denied November 14, 1928.

      R. R. Jones, for plaintiff. H. A. Wilkinson, for defendant.
   Luke, J.

The City of Dawson sued Terrell Countjr for one half of the rents accruing from certain dispensary property during the years 1923, 1924, 1925, and 1926. A demurrer to the petition was sustained and the case dismissed, and the plaintiff excepted.

The material parts of the petition, by paragraph, are substantially as follows: (1) The fiscal affairs of Terrell County are eommitteed to a board of commissioners of roads and revenues. (2) The City of Dawson and Terrell County are “joint owners and tenants in common” of the “old dispensary building and lot” now occupied by E. as a grocery store. (3) Terrell county and the City of Dawson have been joint owners of said property since March 5, 1907, “having on that date acquired ownership to a one half undivided interest each” from the board of dispensary commissioners of Terrell county. Said board was created by an act of the legislature approved December 10, 1897, which act authorized the dispensary commissioners of Terrell county to operate a dispensary in the City of Dawson, and required them to pay one half of the profits made in the operation of said dispensary to the treasurer of Terrell county, and one half to the treasurer of the City of Dawson. Said dispensary commissioners of Terrell county organized and operated said dispensary in the City of Dawson until the year 1907. On May 5, 1905, said dispensary commissioners “purchased from Terrell ^ounty the lot above described and upon which said dispensary building was erected,” a copy of the deed conveying said lot being attached as “Exhibit A.” The purchase price of the lot was $500 paid from the profits of said dispensary, “and the cost of said building was likewise paid by said dispensary commissioners from funds which belonged to them,” as shown by minutes of said dispensary commissioners, a copy of which is attached as “Exhibit B.” Said commissioners ceased to operate said dispensary in 1907, and, on March 5, 1907, “ordered that deeds be made to said dispensary building and lot, one half each to the City of Dawson and to Terrell county,” as appears from minutes of the dispensary commissioners, a copy of which is attached as “Exhibit O.” (4) From the time the plaintiff and the defendant acquired joint ownership of said property until January 1, 1923, the rents and profits therefrom were paid in full by the tenant in possession to Terrell county, which in turn, in January of each year, paid to the City of Dawson one half of the money so collected. In 1924 Terrell county refused to pay to the City of Dawson its half of said rents collected by said county for the year 1923. Since said time Terrell county has continuously failed to pay said city its half of said rents and profits collected by said county, though written demand was made therefor for the years 1923, 1924, 1925, and 1926. During said years Terrell county collected from said property $823.33, which rightly belongs to plaintiff as its half of the rents therefrom; and “in equity and good conscience Terrell county ought not to be permitted to hold said funds which thus belong to the City of Dawson.” Wherefore petitioner prays for a judgment against Terrell county for said sum, and that process issue, etc.

The demurrer is as follows: (1) The allegations of the petition do not authorize a recovery. (2) The petition “nowhere sets out, as an affirmative fact, that the liability sought to be enforced is one for which the county of Terrell is liable by statute.” (3) The suit is “for the purpose of determining the question of title to the property, possession of which is not held by the plaintiff, but is admittedly held adversely.”

It is first contended that.there can be no recovery, because the action is based upon the allegation that the city and the county “are joint owners and tenants in common” of the dispensary property, and the petition fails to show this. Under this head it is contended that the county had no authority to sell the dispensary lot; and that, if it did, the commissioners of roads and revenues were not entitled, under the law, to execute the deed. The Civil Code (1910), § 313, provides: “When any public property shall become unserviceable, it may be sold or otherwise disposed of, by order of the proper authority. . .” “The 'proper authority’ referred to in this chapter is the Governor of the State, for all officers of the State; and the county commissioners, or other officers having charge of county affairs, for all officers of the county.” Civil Code (1910), § 314. Public property becomes “unserviceable . . where such property can not be beneficially or advantageously used under all the circumstances.” Dyer v. Martin, 132 Ga. 445 (2) (64 S. E. 475). The Civil Code (1910), § 396, provides: “The ordinary has the control of all property belonging to the county, and may by order to be entered on their minutes direct the disposal of any real property which can lawfully be disposed of, and appoint a commission to make the titles thereto, and the conveyance of such commission in accordance with such order vests the grantee or vendee with the title” to the property. But the act of September 21, 1883 (Ga. L. 1882-3, p. 506), creating a board of commissioners of roads and revenues for Terrell county, was amended by the act of 1893 (Ga. L. 1893, p. 366), as follows: “ Said commissioners are authorized and empowered to sell and dispose of any and all property of Terrell county and to malee warrantee deed to same to the purchaser thereof whenever, in their judgment, it is to the interest of the county so to do. The proceeds of any property so sold shall be covered into the county treasury as any other funds belonging to the county.” It is therefore clear that the commissioners of roads and revenues had authority both to sell the dispensary property and to execute the deed to the dispensary commissioners of the county of Terrell.

The next question is: Did the dispensary commissioners have the right to purchase the dispensary property ? The act of December 10, 1897 (Ga. L. 1897, p. 562, sec. 2), provides that the dispensary commissioners of Terrell county “are hereby constituted a body corporate . . for the purpose of establishing a dispensary or dispensaries in said county for the sale of spirituous, vinous or malt liquors and intoxicating bitters and ciders.” Section 4 of the act provides that a dispensary be maintained in the City of Dawson. Section 5 of the act provides that the manager of the dispensary “shall sell only for cash, and shall turn over all moneys received by him to the treasurer of the board at least once a week . . .” Section 9 provides that “said dispensary or dispensaries shall be maintained and operated from the profits arising from the sales of said spirituous, vinous, or malt liquors,” etc. Section 10 provides that “said board of commissioners shall disburse the net profits of said dispensary as follows: One half to the county treasurer of Terrell county, to be held as other funds belonging to said county, and the other half shall be paid over to the treasurer of the city or town in which is located the dispensary from which said net proceeds may be derived.” The dispensary commissioners had the authority, under the foregoing act, to purchase the lot and construct a building thereon from the proceeds of the sales of the dispensary.

“Exhibit A” of the petition purports to be a copy of the deed from the commissioners of roads and revenues of Terrell county to the dispensary commissioners of that county. '“Exhibit B” purports to be a copy from the minutes of the dispensary commissioners, of March 5, 1907, resolving “that deeds be made, and are hereby ordered made, to Mayor and City Council of Dawson, and commissioners of roads and revenues of Terrell county, to said dispensary building and lot, an undivided half interest to each.” Said copy from the minutes further recites: “Deeds were then executed, deeding an undivided one half interest in dispensary building and lot to Mayor and City Council of Dawson and their successors, and one half undivided interest to commissioners of roads and revenues Terrell county and their successors.”

As against the general demurrer, the pleadings sufficiently show that the plaintiff and the defendant are “joint owners and tenants in common” of the property in question.

The next and controlling question is this: Is the liability sought to be enforced one for which the county can be held responsible ?

“Every county is a body corporate, with power to sue or be sued in any court.” Civil Code (1910), § 383. However, that the county is not liable to suit as are individuals is clearly shown by section 384 of the Civil Code (1910), reading as follows: “A county is not liable to suit for any cause of action unless made so by statute.”

The case of Butts County v. Jackson Banking Co., 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244), does not present facts like the case under consideration, but we think that the rules of law there laid down are applicable to this case. After stating the general rule (p. 807), that generally “counties and municipal corporations are liable for money had and received by them and applied beneficially to their authorized objects, although the contract by which the money was obtained was unauthorized by law,” the court said: .“The obligation to account for money received by the county, and actually devoted to lawful purposes, rests upon the broad principle of common honesty, which will not permit the county to retain the benefit of money lawfully applied to its use, and at its request, simply because the county lacked the power to borrow the money. . . In an action against a town for money had and received, the question is not what the claimant has parted with to officers who were not authorized to take his money for the town, or what they have promised him, but how much has the town been benefited. . . While the action for money had and received depends not upon a contract express or implied in fact, it is bottomed on the right of the county to incur the liability to discharge which the money was applied.”

The plaintiff amended paragraph 5 of its petition as follows: “The rents collected from the dispensary building, one half of which belongs to the City of Dawson, were collected by the defendant, and were placed in the county treasury, and were used by Terrell county for public purposes.” We think that this amendment, as against the demurrer, was tantamount to an allegation that the money sought to he recovered was used by the county for “lawful purposes,” and that, under the pleadings, the action for money had and received lies for the money alleged to have been appropriated by the county.

Clearly the primary object of this action is not a determination of the question of title to property, and the third ground of the demurrer is not good.

Judgment reversed.

Bloodworth, J., concurs. Broyles, O. J., dissents.


author: Broyles, O. J.

text:
    19106.
    Williams v. Tennessee Chemical Company.
   Broyles, O. J.

1. Under the facts disclosed by the record, this court can not hold, as a matter of law, that the trial judge abused his broad discretion in overruling either of the two separate motions of the plaintiff in error for a continuance of the case.

2. In the light of all the particular facts of the case, it does not appear that the court erred in refusing to strike the second ground of the traverse to the affidavit of illegality, in striking the affidavit of illegality on demurrer, or in admitting in evidence the documentary evidence objected to by the plaintiff in error.

3. A part of the documentary evidence introduced was the affidavit of illegality. During the argument of counsel for the plaintiff in error, the court refused to allow him to discuss the grounds of the affidavit of illegality, or to argue anything in connection therewith, for the reason that it had been dismissed on demurrer. This was error. The affidavit of illegality had been put in evidence for the purpose of showing that it had been filed for delay only, and, having been introduced in evidence, counsel for the plaintiff in error had the right to argue it. This error, however, was harmless, since the evidence adduced demanded a finding that the affidavit of illegality had been filed for the purpose of delay only.

4. The final judgment rendered in favor of the plaintiff was based upon the verdict and was not error for any reason assigned.

Decided November 13, 1928.

A. E. Thornton, for plaintiff in error. John B. Wilson, contra.

5. On account of the error pointed out in the third headnote, this court declines to assess damages against the plaintiff in error on the ground that the case was brought to this court for delay only.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19111.
    Byrd v. The State.
    Decided November 13, 1928.

      Pcml L. Lindsay, for plaintiff in error.

      Carlton W. Binns, solicitor, John A. Boylcin, solicitor-general, J. W. LeCraw, contra.
   Broyles, O. J.

1. Under the facts of the case the refusal of the trial judge to declare a mistrial (the motion being based upon an alleged improper question propounded by the prosecuting attorney to a witness for the defendant) was not error.

2. Under repeated rulings of the Supreme Court and of this court, a refusal to direct a verdict is never ground for a new trial.

3. The verdict was authorized by the evidence. The only witness for the defendant was his brother, who testified that the whisky found in the defendant’s house was his and put there by him and that the defendant did not know it was there and had no interest in it. However, the record discloses that the witness made contradictory statements about the whisky, and, under all the particular facts of the case, the jury were authorized to disbelieve that part of his testimony which asserted that the defendant had no interest in the whisky and did not know it was in his house.

4. Eor no reason assigned did the judge of the superior court err in overruling the certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19112.
    Brown v. The State.
    Decided November 13, 1928.
   Luke, J.

Being bound to accept as true the evidence as it appears in the untraversed answer of the trial judge to the petition for certiorari, we are constrained to hold that the evidence supports the verdict, and that the certiorari was properly overruled.

Judgment affirmed.

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

H. A. Allen, J. 8. Hall, for plaintiff in error.

Carlton IF. Binns, solicitor, John A. Boykin, solicitor-general, J. IF. LeCraw, contra.


text:
    19120.
    Sadler v. The State.
    Decided November 13, 1928.

      C. G. Battle, for plaintiff in error.

      Carlton IF. Binns, solicitor, John A. Boykin, solicitor-general, J. TF. LeCraw, contra.
   Broyles, O. J.

1. The answer of the trial judge shows that the venue was proved.

2. The evidence authorized the trial judge, sitting without a jury, to find the defendant guilty of the offense charged.

3. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


author: Broyles, C. J.

text:
    19125.
    Graham v. Growers Finance Corporation.
    Decided November 13, 1928.

      H. TF. Halley, for plaintiff in error.

      G. L. Hattaway, A. T. Levie, Bryan & Middleírooks, TF. C. Carter, contra.
   Broyles, C. J.

The bill of exceptions in this case was filed in the office of the clerk of the trial court on October 22, 1927, and should have been transmitted to the October term, 1927, of this court, but was not transmitted until July 3, 1928, upon which date it was filed in the • office of the clerk of this court. The bill of exceptions having reached this court after the close of the term to which it was returnable, the writ of error must be dismissed. Atkins National Bank v. Harmon, 19 Ga. App. 657 (91 S. E. 1051).

Writ of error dismissed.

Luke and Bloodioorth, JJ., concur.


text:
    19129.
    BARKER v. CONRAD et al.

    Decided November 13, 1928.

      G. A. Whitaker, for plaintiff in error.

      E. E. Wilcox, T. G. Connell, contra.
   Broyles, C. J.

1. “To sustain an application for the removal of obstructions from an alleged private way, the right to which is based upon prescription by seven years’ user, it is essential that the applicant show not only that he has been in the uninterrupted use thereof for seven years or more, that it does not exceed fifteen feet in width, and that it is the same fifteen feet originally appropriated, but that he has kept it open and in repair during such period” (Italics ours). Johnson v. Sams, 136 Ga. 448 (2) (71 S. E. 891); Chandler v. Reeves, 26 Ga. App. 167 (2) (105 S. E. 724); Collier v. Farr, 81 Ga. 749 (7 S. E. 860).

2. In their petition the applicants failed to state that they had kept the alleged private way open and in repair for seven years or more. The petition, therefore, failed to set out a cause of action, and the trial judge (the ordinary) erred in overruling the general demurrer interposed. That error rendered the further proceedings in the case nugatory. The defendant took the case to the superior court by certiorari, and that court sustained the certiorari and remanded the case for another trial before the ordinary, refusing to render a final judgment in favor of the defendant. To the judgment refusing to render such a judgment the defendant excepted. The refusal was not error, since the judgment of the ordinary overruling the general demurrer to the petition was not an error in law which must finally govern the case. This is true because when the judgment of a trial court overruling a general demurrer to a petition is reversed by a higher court, the plaintiff has the right to file an amendment to the petition at any time before the judgment of the higher court is made the judgment of the trial court. Augusta Ry. Co. v. Andrews, 92 Ga. 706 (1), 709 (19 S. E. 713), and citations; Savannah &c. Ry. Co. v. Chaney, 102 Ga. 814 (30 S. E. 437). However, the judge of the superior court is directed to instruct the trial judge to dismiss the petition on demurrer, unless the applicants amend their- petition by stating therein that they had kept the alleged private way open and in repair for seven years or more.

Judgment affirmed, with direction.

Luke and Bloodworlh, JJ., concur.


text:
    19132.
    Webb v. Piedmont Savings Company.
    Decided November 13, 1928.

      G. S. Peck, for plaintiff in error. Madison Richardson, contra.
   Broyles, C. J.

Under the facts of the case as disclosed by the record, it does not appear that the judge of the superior court erred in overruling the certiorari.

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.


text:
    19133.
    Sheffield v. Sheffield.
    Decided November 13, 1928.
   Luke, J.

1. The court did not err in refusing to continue the case because of the absence of a witness who had not been subpoenaed (Civil Code (1910), § 5715) ; the evidence supports the verdict; and the motion for a new trial was properly overruled.

2. The request for an award of damages under the Civil Code (1910), § 6213, because it is contended that the case was taken up for delay only, is denied. Judgment affirmed.

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

IK. I. Geer, for plaintiff in error. P. B. Rich, contra.


text:
    19138.
    Alabama Great Southern Railroad Co. v. McAuley.
    Decided November 13, 1928.

      McClure, Hale & McClure, Maddox, Maddox & Mitchell, for plaintiff in error.
   Broyles, O. J.

This was a suit for damages for the killing of a dog. The evidence for the plaintiff, though circumstantial, was sufficient to authorize a finding that the animal was killed by the running of a train of the defendant. The presumption then arose that the defendant was negligent in the particulars alleged in the petition. Whether that presumption was rebutted by any evidence adduced was a question for the jury, and their finding that it was not rebutted was supported by some slight evidence, and, the verdict having been approved by the trial judge, this court is without authority to interfere. None of the special grounds of the motion for a new trial show cause for a reversal of the judgment. Judgment affirmed.

Luke and Bloodivorlh, JJ,, concur.


text:
    19146.
    Morgan v. The State.
   Broyles, C. J.

1. The overruling of the demurrer to the criminal information was not error for any reason assigned.

2. In the light of the entire charge of the court and of the particular facts of the case, the excerpt from the charge, complained of in ground 2 of the amendment to the motion for a new trial, contains no harmful error.

3. Ground 3 of the amendment to the motion for a new trial is not complete within itself.

4. The evidence introduced to convict the accused was not wholly circumstantial. Therefore, in the absence of a timely and appropriate written request, the court’s failure to instruct the jury upon the law of circumstantial evidence was not error.

5. The ground of the motion for a new trial based upon alleged newly discovered evidence is an attempt to discredit the evidence of the principal witness for the State. “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 effect of the evidence would be to impeach the witness a new trial will not be granted.” Burnett v. State, 36 Ga. App. 647 (1) (137 S. E. 796), and citations.

Decided November 13, 1928.

Smith & Taylor, Boylcin & Boylcin, for plaintiff in error.

Emmett Smith, solicitor, contra.

6. The other special grounds of the motion are expressly abandoned in the brief of counsel for the plaintiff in error.

7. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19156.
    Oglesby v. The State.
    Decided November 13, 1928.

      H. A. Boylcin, T. J. Evans, for plaintiff in error.

      John 0. Hollingsworth, solicitor-general, contra.
   Broyles, C. J.

1. The general grounds of the motion for a new trial, not having been argued or referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

2. The single ground of the amendment to the motion for a new trial is without merit.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Broyles, 0. J.

text:
    19162.
    Mathis v. The State.
    Decided November 13, 1928.

      D. E. Griffin, J. B. Wall, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
   Broyles, 0. J.

The evidence authorized the verdict, and the motion for a new trial contained the usual general grounds only.

Judgment affirmed.

Luke and Blood-worth, JJ., eoneur.


text:
    19182.
    Blair v. The State.
    Decided November 13, 1928.

      Willis Smith, for plaintiff in error.

      Emmett Smith, solicitor, contra.
   Broyles, 0. J.

The evidence was not wholly circumstantial and amply authorized the defendant’s conviction, and none of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment.

Judgment affirmed.

Luke and Blood-worth, JJ., concur.


text:
    19183.
    PERRY v. THE STATE.
    Decided November 13, 1928.

      H. H. Tisinger, Smith & Taylor, for plaintiff in error.

      Emmell Smith, solicitor, contra.
   Luke, J.

Glenn Perry was convicted of having, controlling, and possessing intoxicating liquor. His motion for a new trial is based upon the general grounds, and upon the ground that the court erred in not charging the law of circumstantial evidence.

The marshal of Fullerville testified in substance that he noticed a “wad” in the defendant’s hip-pocket; that when he reached for the defendant the latter hit him in the stomach and ran; that he pursued the defendant, and, though it was dark, saw him, by the light of a flashlight, throw down and break a quart-bottle, and that the witness found the ground saturated with whisky and smelled the odor of whisky on the broken pieces of the bottle. The defendant directly contradicted the foregoing testimony, and the testimony of his witnesses tended to contradict it. The verdict is supported by evidence, and has the approval of the trial judge, and this court can not disturb it for any reason assigned in the general grounds of the motion for a new trial.

The conviction not being wholly dependent upon circumstantial evidence, and there being no request to charge thereon, the court did not err in failing to charge the law of circumstantial evidence. Rushing v. State, 34 Ga. App. 525 (130 S. E. 358); Thomas v. State, 37 Ga. App. 823 (3) (142 S. E. 195); Paramore v. State, 161 Ga. 166 (8) (129 S. E. 772); Chisholm v. State, 162 Ga. 13 (1) (132 S. E. 388).

Judgement affirmed.

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


text:
    19190.
    Strickland v. The State.
    Decided November 13, 1928.
   Broyles, O. J.

1. “The evidence in support- of the defense of alibi was not of such clear and strong probative value as to require from the court an instruction on the law of alibi, especially in the absence of a timely written request.” Bonner v. State, 26 Ga. App. 185 (6) (105 S. E. 863), and cit.

Under this ruling and the facts of the instant ease, the failure to charge the law of alibi was not error.

2. The remaining grounds of the amendment to the motion for a new trial (ground 6 being expressly abandoned in the brief of counsel for the plaintiff in error) show no cause for a reversal of the judgment.

3. The verdict was amply authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Hubert F. Rawls, for plaintiff in error.

A. B. Spence, solicitor-general, T. R. Gress, assistant attorney-general, contra.


text:
    19194.
    BURGE v. THE STATE.
    Decided November 13, 1928.

      O. L. Harris, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
   Luke, J.

J. J. Burge was adjudged in contempt of court and sentenced to serve twenty days in jail and pay a fine of $200. The petition alleges, in substance, that Ellis Conley was a witness under subpoena to appear before the grand jury in the case of the State v. Lonnie Morton, charged with selling whisky; that on July 23, 1928, at the noon hour, and before the court-house door, J. J. Burge “violently seized said Conley, drew an open knife, and threatened to cut said Conley’s head off;” and that all this was done because of said Conley’s attendance as a witness before the grand jury, and in order to intimidate him and prevent him from testifying.

It appears from the record that J. J. Burge’s wife ran a filling station, and that Lonnie Morton worked there. A deputy sheriff testified that early in the morning of July 23, 1928, he went to Burge’s house to tell him he had come for Morton; that Burge inquired what he wanted with Morton, and he replied, “for selling whisky;” that Burge then asked where he got his information, and he replied, “This old one-arm negro turned him up, and that is the evidence against him;” and that the negro worked for T. J. Royal. There was evidence that Burge approached Conley (a negro man) at the time and place alleged in the petition, with a long, open knife in his hand, and asked him if he had brought liquor from Lonnie Morton; that Conley said he had; that Burge caught hold of Conley, cursed him, and threatened to kill him; and that when others interfered, and just before Burge released his hold on the negro, Burge said, “I am a good mind to cut your throat.” The negro Conley had only one arm. Burge testified in substance that he did not hear the deputy sheriff say anything about a, one-arm negro; that a negro told him that Conley worked on Mr. Boyal’s place; that he approached Conley and told him that he wanted to get information about a negro who was said to have turned up Morton; that Conley refused to answer, was impertinent, and told him to “go to hell;” that he then took hold of Conley and said to him, “Your damn head ought to be cut off for talking as impudent as you talk;” that he did not know Conley, knew nothing about his being a witness before the grand jury, and that he never threatened him or tried to intimidate him.

It was said in the early ease of Howard v. Durand, 36 Ga. 346 (2) (91 Am. D. 767), that “the action of the superior courts in punishing parties for contempt will not be controlled, except they abuse their discretion.” In the case of Warner v. Martin, 124 Ga. 392 (52 S. E. 448, 4 Ann. Cas. 180), Chief Justice Fish, speaking for the court, said: “It is too well settled to need citation of authority that the decision of a judge on the question of contempt will not be disturbed by the Supreme Court, except in a case where such discretion has been grossly abused.” The power of the court to punish for contempt is stated in the Civil Code (1910), § 4643. There is no merit in the contention that the court erred in holding the defendant in contempt of court because it did not appear that the alleged offense was committed in the presence of the court, or so near thereto as to interfere with the administration of law and justice. See Morgan v. State, 26 Ga. App. 83 (105 S. E. 449); Herring v. State, 165 Ga. 254 (140 S. E. 491).

Clearly the trial judge did not abuse his discretion adjudging Burge in contempt of court, and his judgment so doing will not be interfered with by this court.

Judgment affirmed.

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


text:
    19212.
    Holder v. The State.
   Broyles, C. J.

This was an extraordinary motion for a new trial, based upon alleged newly discovered evidence. This court can not hold that the trial judge abused his discretion in denying the motion, since the affidavit iu support of the sole witness upon whose alleged newly discovered evidence a new trial was sought failed to give the names of his associates. Troupe v. State, 37 Ga. App. 115 (2) (139 S. E. 116), and citation. Judgment affirmed.

Decided November 13, 1928.

Eli B. Hubbard, for plaintiff in error.

Joseph B. Dulce, solicitor-general, contra.

Luke and Bloodioorth, JJ., concur.


text:
    19219.
    Garmany, for use, etc., v. Shaw.
    Decided November 13, 1928.

      David F. Pope, for plaintiff. Rosser Shaw, for defendant.
   Broyles, O. J.

Under the pleadings and the evidence adduced, a verdict in favor of the plaintiff was demanded, and the court erred in overruling the general grounds of the motion for a new trial.

Judgment reversed.

Luke and Bloodioorth, JJ., concur.


text:
    19222.
    Whitehead et al. v. The State.
    Decided November 13, 1928.
   Broyles, 0. J.

In the opinion of the majority of this court the evidence (which was wholly circumstantial) was insufficient to exclude every reasonable hypothesis save that of the guilt of the accused, and the refusal to grant a new trial was error. The writer thinks that the evidence was sufficient to authorize the jury to find that it excluded every reasonable hypothesis except that of the defendant’s guilt. See, in this connection, Yonce v. State, 154 Ga. 419 (114 S. E. 325); Flint v. State, 29 Ga. App. 222 (114 S. E. 585); Jones v. State, 36 Ga. App. 264 (136 S. E. 542).

Judgment reversed.

Luke and Bloodioorth, JJ., concur. Broyles, O. J., dissents.

Shackleford, Shackleford & Davis, Wolver M. Smith, for plaintiff in error

cited Ga. App. Rep.: 2/534; 7/607; 14/598; 16/291, 293-4; 25/242, 258; 27/581, 601, 603; 28/347, 363; 29/24.

Pemberton Cooley, solicitor-general, contra,

cited Ga. App. Rep.: 29/173, 222; 35/581; 36/364(2); 154 Ga. 419.


author: Beoyx.es, O. J.

text:
    19236.
    Cothren v. The State.
    Decided November 13, 1928.
   Beoyx.es, O. J.

1. While a witness for the State in a criminal case is being' cross-examined by counsel for the defendant, it is not error for the judge to refuse to allow such counsel to introduce a record showing an entry of a plea of guilty by the witness to an indictment charging a misdemeanor. The evidence should have been tendered at the proper time, — after the State had closed or rested its ease.

2. Grounds 2 and 3 of the amendment to the motion for a new trial are not complete and understandable within themselves. Nor do those grounds show the expression of an opinion on the part of the court as to what had, or had not, been proved in the case, within the meaning of section 1058 of the Penal Code of 1910. See, in this connection, Hatcher v. State, 8 Ga. App. 673 (2) (70 S. E. 43).

3. The indictment contained three counts, — the first for making whisky, the second for attempting to make it, and the third for possessing whisky. After all the evidence was in, the judge charged the jury that the second count of the indictment was not supported by the evidence and that they should consider the first and third counts only. This charge was not error for any reason assigned. It was distinctly beneficial to the accused. Downing v. State, 66 Ga. 160 (5).

4. In the light of the facts of the case and the charge as a whole, the other excerpts from the charge, complained of, show no cause for a reversal of the judgment.

5. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Homer L. Causey, for plaintiff in error.

A. B. Spence, solicitor-general, T. R. Gress, contra.


text:
    19285.
    Blumenfeld v. Freeman, Judge.
    Decided November 13, 1928.

      R. B. Fortune, Kelley & Kelley, for the applicant.
   Broyles, C. J.

1. “The law embodied in the Civil Code [1910], § 0152, does not in any case authorize delay in tendering to a trial judge a bill of exceptions alleging error in a judgment rendered during a given term, for more than thirty days after the final adjournment of the court for that term.” First National Bank of Forsyth v. Taylor, 138 Ga. 119 (1) (74 S. E. 783), and citations.

2. This is a petition for mandamus to require the judge of the city court of Savannah to sign a bill of exceptions. The following facts are shown by the petition: The case of Frances Blumenfeld v. Citizens Bank and Trust Co. was tried in the city court of Savannah during the July, 1928, term thereof, on the 9th day of August, and resulted in a directed verdict for the defendant. To that judgment a direct bill of exceptions was presented to the judge on the 3d day of October, 1928. The July' term of the court was opened on the first Monday in July, 1928, and was finally adjourned on September 1, 1928. It is contended for the petitioner that “inasmuch as the court did not adjourn within thirty days from the date of the organization and opening of the court,” the petitioner, under the provisions of section 6152 of the Civil Code of 1910, had sixty days within which to tender the bill of exceptions. Under the ruling stated in paragraph 1 above, the contention of the petitioner is without merit, and the judge properly declined to certify the bill of exceptions tendered him thirty-two days after the final adjournment of the July term of the court.

Mandamus nisi denied.

Luke and Bloodioorth, JJ., concur.


author: Bloodworth, J.

text:
    18135.
    WILLIAMS v. THE STATE.
    Decided November 14, 1928.

      H. A. Boylcin, for plaintiff in error.

      J. H. Howard, solicitor, contra.
   Bloodworth, J.

In the city court of Sylvauia an accusation was preferred against George Williams, charging him with a misdemeanor, for that he, “on the 5th day of September, 1926, in the county aforesaid, unlawfully, with force and arms, did pursue his ordinary business or the work of his ordinary calling on the Lord’s day, by selling for a valuable consideration a certain quantity of gasoline.” Upon the trial of the case the evidence showed that the accused, on the Sabbath day, sold to “some fellows” going from Augusta to Savannah five gallons of gasoline. A verdict of guilty was returned, a motion for new trial was overruled, and the defendant excepted. In answer to a question certified to it by this court, the Supreme Court answered as follows: “In the light of modern-day methods of traveling by automobile, the motor-power of which is derived from the use of gasoline, and in the light of the present-day use to which automobiles are put, the sale of gasoline on the Sabbath is a ‘work of necessity’ within the contemplation of the Penal Code (1910), § 416.” For full opinion of the Supreme Court see 167 Ga. (144 S. E. 745). Under this ruling the trial court erred in overruling the motion for a new trial.

Judgment reversed.

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


author: Bloodwoeth, J.

text:
    18229.
    Heaton v. The State.
   Bloodwoeth, J.

“1. The judges of tlie superior courts, at tlie close of each, term, in open court, shall unlock the box, and break the seal, and cause to be drawn from apartment number ‘ one ’ not less than eighteen nor more than thirty names to serve as grand jurors at the next term of court; all of which names shall be deposited in apartment number ‘two’; and when all the names shall have been drawn out of apartment number ‘ one ’, then the drawing shall commence from apartment number ‘ two ’, and the tickets be returned to number ‘ one ’ and so on alternately; and no name so deposited in the box shall, on any pretense ■whatever, be thrown out of it, or destroyed, except when it is satisfactorily shown to the judge that the juror is dead, removed out of the county, or otherwise disqualified by law. Penal Code (1910), § 823. The language, ‘ or otherwise disqualified by law/ means a disqualification which renders it improper to put the name of a person in the grand-jury box and not a disqualification propter affectum.

“2. A grand jury should be drawn from the whole body of citizens selected and placed in the grand-jury box indifferently and without discrimination, under the above section of the Penal Code.

“3. When a grand jury is so drawn to serve, and it develops that a number of its members are disqualified to serve in the investigation of an alleged charge against the defendant, and the judge undertakes to supply their places by drawing other grand jurors from the grand-jury box, such drawing shall be made indiscriminately and without discrimination as above stated. In drawing such jurors a trial judge is not authorized by law, upon information based in part on what he knows, and derived in part from others, to reject jurors so drawn upon the ground that they would be incompetent propter affectum to indict the person against whom a charge is preferred and is to be passed upon by the grand jury. White v. State, 166 Ga. 192 (142 S. E. 666).

Decided November 14, 1928.

John 8. Edwards, 8. Holderness, for plaintiff in error.

S. W. Ragsdale, solicitor-general, E. 8. Ault, contra.

“4. Where a grand jury so drawn returned an indictment against a defendant, and the defendant filed a plea in abatement raising the above objection to the manner in which such grand jury was drawn, such plea was good, and the trial judge erred in directing a verdict against such plea, and the Court of Appeals erred in affirming that ruling of the trial judge.

“5. For the above reasons we reverse the judgment of the Court of Appeals; and this renders it unnecessary for us to consider any of the other assignments of error in the record, because, when the trial judge improperly directed a verdict against the plea in abatement, all that took place subsequently thereto was nugatory.”

The foregoing are the rulings of the Supreme Court in this case, which was carried by certiorari to that court. (167 Ga., 144 S. E. 782). Under these rulings the former judgment of this court (37 Ga. App. 195, 139 S. E. 103) must be vacated, and the judgment of the trial court overruling the motion for a new trial is

Reversed.

Broyles, O. J., amd Luke, J., coneur.


text:
    18690.
    TIFT v. CITY OF TIFTON.
    Decided November 14, 1928.

      Fulwood & Forrester, C. A. Christian, for plaintiff in error.

      J. S. Ridgdül, R. D. Smith, contra.
   Luke, J.

T. W. Tift filed his affidavit of illegality, containing a plea of res judicata to the levy of a paving execution issued by the City of Tifton. Upon oral motion the court dismissed the plea of res judicata, and Tift excepted pendente lite. The ease then proceeded to trial, the jury found against Tift, his motion for a new trial was overruled and he excepted, assigning error on the rulings stated.

In his affidavit of illegality, Tift deposed: “that the execution ., . has been levied by . . the city marshal of Tifton on the following property, to wit: all that tract . . of land situated . . in . . the City of Tifton, and fronting on South Central Avenue, west side, 140 feet, beginning at the northwest corner, South Central Avenue and Third St., running north, said tract being 380 feet in depth, even width, as the property of affiant, and affiant says that said execution did issue illegally, and is proceeding illegally against him and said property, for the following reasons, to wit: 1. Said execution issued for the sum of $900 by the City of Tifton after an assessment had been made by the said city against this property, together with other property, the entire property described as follows: a tract of land fronting on Central Avenue 379.4 feet and extending back a depth of 300 feet, in the sum of $2,503.05. After which" assessment affiant filed his petition in the superior court of Tift county asking for injunction and other equitable relief, which case came on to be tried at the December term, 1926, of Tift superior court; and upon the trial of said case the court directed that the assessment be against only a frontage of 280 feet, and that the issue be submitted to the jury as to the injunction and other relief sought against the two lots fronting 140 feet each and extending back 380 feet; which issue was tried at said term, and a verdict rendered by the jury in favor of the plaintiff and in favor of the injunction in words and figures, to wit: “We, the jury, find for the plaintiff and in favor of the injunction. W. J. Davis, foreman.” Said verdict and a- part thereof being based upon certain questions propounded by the court to the jury, . . said questions and answers being as follows: Q. ‘What was the value of the two lots before paving was laid down?’ A. ‘1200.’ Q. ‘In what amount was the value of the property increased by paving?’ A. ‘$800.’ Q. ‘Do you find the paving assessment of $1800 against the two lots confiscatory? Answer yes or no.’ A. ‘Yes.’

“Said verdict having been returned in Tift superior court, a court of competent jurisdiction, . . and said verdict fixing the amount which the city could legally assess against this property, together with another lot of equal size and value, the amount so fixed being $800; and any assessment by the City of Tifton, and any execution issued thereon against the property described in this execution, or against the balance of said property hereinbefore described, to an amount exceeding $800, is illegal and contrary to law, same having been duly adjudicated by a jury under instructions from the court in an equitable proceeding as above set forth, from which verdict the City of Tifton has taken no appeal, and the time having expired under the law in which an appeal could be entered.

“Affiant shows to the court that in addition to the assessment of $900 and the issuance of an execution based upon said assessment as aforesaid against the property described in this execution, and upon which levy has been made, said city has also assessed the sum of $900 and issued execution therefor against the following described property: all that tract of land situated . . in the county of Tift, State of Georgia, in the City of Tifton, and fronting on South Central Avenue, beginning at a point west side of Central Avenue 160 feet from the N. W. corner of South Central Avenue and Third St., being 380 feet in depth and even width; this property, together with the property levied upon, being the entire property upon which the original assessment was made, and upon which the jury found an assessment of $1800 was confiscatory, and which they found had. enhanced in value only in the sum of $800.

“Affiant further shows that he has tendered to the City of Tifton the sum of $800, being the amount found by the jury against this property, together with the other lot above described, which tender has been refused by the City of Tifton, and which he now tenders into court and stands ready to pay at any time.

“2. Affiant states further that the said execution issued illegally and is proceeding illegally, for the reason that the enforcement of said execution would be a virtual confiscation of his property, in that said assessment is against property not abutting on said street, and against which the city had no authority to make an assessment and to issue an execution therefor, in that said assessment and said execution issued against the following described property: a parcel of land on the west side of Central Avenue fronting 140 feet, and running back to a depth of 380 feet; when as a matter of fact there is no such property or lot owned by this defendant of such description or dimension, but to the contrary, at said point he owns a lot fronting on an unnamed street 75 feet, and running back on Central Avenue 140 feet; and the value of said lot is not more than $400, and that the assessment and execution issued thereon for the sum of $900, and that any enforcement thereof would be a confiscation of affiant’s property.

“Affiant states further that‘said execution did issue illegally and is proceeding illegally for the reason that the same is an amount which, if. enforced, would be a virtual confiscation of the property described in said execution and levy, in that said property as described in said execution and levy is not worth in excess of $700, and that the assessment and the execution issued thereon in the sum of $900, if enforced, would amount to a confiscation of the property.

“3. Affiant states further that said execution did issue illegally and is proceeding illegally, for the further reason that the city’s charter, nor the ordinance adopted in pursuance thereof, authorizing or requiring Central Avenue to be paved, one third of the cost to be assessed against the owner of the property abutting upon said pavement, affords to the property owners abutting thereon an opportunity to be heard upon the questions of the cost and value of such paving, in that both the charter and the ordinance are violative of article 1, section 1, paragraph 3 of the constitution of this State, which provides that no person shall be deprived of life, liberty, or property without due process of law; for that the said charter of the City of Tifton, nor the ordinance which conferred upon the city the right to pave Central Avenue and to assess the cost against the property owners, makes no provision whereby such property owners may be heard as to the reasonableness or unreasonableness of the cost assessed, or the necessity thereof, and is therefore invalid as in violation of the provision of the constitution guaranteeing that no person shall be deprived of his property without due process of law.”

The first question for consideration is: Did the court err in overruling the plea of res judicata? The verdict in the injunction case appears in the affidavit of illegality. The judgment based on that verdict is as follows: (The case having been first stated) “A verdict having been rendered by the jury trying the above-stated case, and such verdict being for the plaintiff and in favor of the injunction, and further finding that the city’s paving assessment of $1,848.28 is excessive and confiscatory, it is hereby ordered that the City of Tifton be and it is hereby permanently restrained and enjoined from issuing an execution and enforcing the same in and for the sum and amount of $1,848.28, and any sum greater than such amount. The City of Tifton shall not be prohibited nor prevented from amending its paving assessment by reducing the amount thereof in its discretion, but below the amount found to be confiscatory by the jury. After such assessment has been amended in accordance with the terms of this order, the City of Tifton shall then proceed with the collection of the amount determined upon in the manner provided by law, provided, however, that there is reserved to the plaintiff, T. W. Tift, the right to resist enforcement of such claim by resort to affidavit of illegality or other remedy provided by law. It appearing from the record that T. W. Tift is the owner of the tract of land lying upon South Central Avenue, the subject-matter of the assessment, and that the abutting frontage is 280 feet, and not 379.6 feet, the amount covered by the city’s assessment, it is hereby ordered that the defendant, City of Tifton, write off from its original assessment, $2,503.05, the'sum of $653.77, thereby reducing the same to $1,848.28; provided further that the City of Tifton may issue or make, as the case may be, assessment against the 100 feet included in the original assessment and disclaimed by T. W. Tift and deducted from his assessment. Said assessment shall be on the usual basis, and against the true owner of such lots if discovered, if not against the landowner unknown; provided, however, that if it should appear that the 20-foot strip and the 80-foot strip going to make up the 100 feet deducted from the yardage going to make up the assessment against T. W. Tift and said property so assessed be found embraced with the city’s street or alley system, then the sale of such strips or lots may be enjoined by any citizen or property holder at interest.”

We are of tbe opinion that the court properly struck the plea of res judicata, for the reason that the assessment was less than the amount found to be confiscatory, and the assessment was not violative of the verdict or the judgment.

The jury’s verdict in the illegality case, including answers to questions propounded to them by the court, was as follows: “We, the jury, find in favor of the City of Tifton and that the assessment of $900 against each of two lots is not confiscatory. We find the size of the lots to be 140 by 200 feet. We find the value of the two lots before paving to have been $1,700. We find paving added $1,800 to the value of the lots. We find present value of lots after paving to be: Lot # 7 $1,500; Lot # 8 $2,000.”

The judgment as amended reads as follows: “The jury in the within case having returned a verdict in favor of the City of Tifton and against T. W. Tift and the illegality filed therein, and having found the size of the lots in controversy to be 140 feet by 200 feet, it is therefore ordered that the original execution be so amended as to become a lien upon so much of the property as is described in the original execution as to make from each of such lots a lot 140 feet by 200 feet in size. The cost of the proceeding is taxed and fixed against the defendant, T. W. Tift.”

The evidence authorized the verdict and the special grounds of the motion for a new trial are without merit. When read in its entirety, the charge of the court was not subject to any criticism made of it.

Judgment affirmed.

Broyles, G. J., and Bloodworih, J., concur.


author: Per CuRrAM. Luke, J.

text:
    18831.
    Andrews v. The State.
   Per CuRrAM.

1. Under the evidence and the defendant’s statement, the court did not err in charging the law of voluntary manslaughter or the law of mutual combat.

2. In the light of the facts of the case and of the entire charge of the court, the following instructions to the jury was not erroneous for any reason assigned: “I charge you, as a correct principle of law, if you are satisfied by the evidence in this case beyond a reasonable doubt that the defendant now upon trial and the person alleged to have been killed in the bill of indictment, if there was bad blood existing between these two women on the night of the 12th of November in the year 1927, and if you are further satisfied that there was not only bad blood existing between them, but that both of them were armed with deadly weapons, and that they intended to settle their differences' by the use of those deadly weapons, and if the defendant killed the person alleged to have been killed in that bill of indictment, under these circumstances she would be guilty of the offense of voluntary manslaughter. ”

Decided November 14, 1928.

W. 8. Florence, fox plaintiff in error.

Joseph B. Dulce, solicitor-general, contra.

(a) There is nothing in the case of Green v. State, 7 Ga. App. 804 (68 S. E. 318), contrary to this ruling. The charge there differs from the charge in the instant case. In this ease the judge charged the jury that “under the definition of voluntary manslaughter, if one person kills another simply because the other person has committed , an assault on him, or has committed a serious personal injury upon him, mid does not kill him in self-defense (italics ours), as will hereafter be explained to you by the court, why then the person killing would, be guilty of voluntary manslaughter,” and immediately gave the portion of the charge to which exceptions were taken. The judge later charged on self-defense. Moreover, the reversal in the Green case was not based on the theory that under the circumstances stated in the charge the defendant was not necessarily guilty of manslaughter.

3. The case not depending entirely upon circumstantial evidence, and there being no request to charge, the court did not err in failing to charge the law of circumstantial evidence.

4. The alleged newly discovered evidence is not of such a character as . would probably produce a different verdict on another trial of the case.

5. The verdict is abundantly sustained by the evidence, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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

Luke, J.

I do not agree with the judgment of affirmance in this case, because of what I believe to be error in the excerpt qiioted from the charge of the court in paragraph 2 of the decision. Under the circumstances stated, the defendant might be guilty of voluntary manslaughter, but would not necessarily be so; and to charge unqualifiedly that she would be guilty of that offense under the circumstances stated was in my opinion reversible error. See Penal Code (1910), § 73, Green v. State, supra.


text:
    18978.
    SOUTHERN RAILWAY CO. v. WHITFIELD COUNTY et al.

    Decided November 14, 1928.

      8am P. Maddox, McDaniel & Neely, for plaintiff in error.

      B. Garter Pittman, contra.
   Luke, J.

On January 12, 1928, a tax-execution was levied on certain property of the Southern Railway Company, and on February 13, 1928, the Railway Company filed an affidavit of illegality ■to the levy. On February 17, 1928, the board of commissioners of roads and revenues of Whitfield County amended the original tax assessment by the following resolution: “Whereas, in the order passed September 6, 1927, levying and assessing taxes for the county-of Whitfield for the year 1927, there appears as the first item of said levy the following language: ‘For bridges and public works including convicts .60/ and whereas the language therein used is somewhat vague and susceptible of improper construction, now, therefore, in order to clarify the meaning of the language used in said item of said levy, and in order to make said item speak more clearly and specifically the purpose of the original levy of said item, the same is hereby amended, and, as amended, 'is expressed as follows: ‘For bridges and such other public works as court-house and jail, including the building and repairing done upon them by convicts and hired hands, as well as the building and repairing done upon them according to contract .60/” On March 30, 1928, an amendment to the original affidavit of illegality was allowed. The case was submitted to the court upon an agreed statement of facts, for a decision of all questions of law and fact. The court found against the illegality and ordered the execution to proceed, and the Southern Railway Company excepted.

The following is substantially the agreed statement of facts: “The taxable property, including railroad property, franchise, etc., in Whitfield County for the year 1927, aggregated $8,717,536, and the levy of six dollars on the one thousand dollars amounts to $52,-305.22.” Prior to the amendment of the levy, “all of the taxpayers, with some few exceptions, had paid their taxes for the year 1927,” payments having been made prior to the date the tax fi. fa. was issued and the date it was levied. “The only levy made for the new addition to the court house in 1926 was the $6.20 on the thousand for the purpose stated in Code section 513, par. 2, and the .60 item of 1927.” The remodeling of the court-house was done under contract, and was paid for out of the tax levies of 1926 and 1927, some of the contract price being paid in the last month or so, and $600 being yet to be paid. The contract price for the court-house was $29,484.78. .The amounts paid out of the 1926 and 1927 levies can not be accurately determined from the books of the county. “The convicts worked on jail and court-house, building concrete floor in jail and re-enforcing vaults in court-house/which cost approximately $500.” “At the date of the levy made for 1927 it was anticipated that $15,000 would be expended for one half of a bridge to be built under contract, and to be paid for by Murray and Whitfield counties. Other contracts may be let where they can not be economically built by convicts. Contracts have not yet been let for the Murray and Whitfield county bridge.” “There was expended for bridges for work done between March 12, 1927, and March 21, 1928, $16,913.59. Approximately two thousand of this amount was for material purchased for small bridges, iron, concrete, sewer-pipe, etc.; and the work of putting material in place was done by convicts, $8,978.11 and $4,870, total $13,848.11, was for two bridges built according to contract. The balance of $1,065.59 was paid to hired labor for repairs done on bridges and for material, etc.” “ Convicts are employed on the bridges of the county about ten per cent of their working time during the run of the year.” “At the time of the levy of tax for 1927 an anticipated levy of $30,000 was for building new jail. No contract for jail has' been let.- Board expects to advertise and let contract some time during coming summer.” “Material for bridges, except drain-tile, sewer-pipe, or clay-drains, is paid for out of the bridge fund.” “Drain-tile, sewer-pipe, where work is done by convicts, is paid for out of the road fund. During twelve months approximately $6,000 is paid for sewer-pipe and drain-tile, which is paid for out of road fund. Trucks, road machinery, scrapes, etc., where used by convicts, is paid for out of general fund, and is charged to convict maintenance. The amount . . will average from $2,000 to $3,000 per annum.” “No separate account is kept of amounts collected for road, bridges and work done on public buildings, but expenditures made are kept under heads for [which] tax is collected, and the charges on each separate levy is kept as nearly accurate as can be done.” “Maintenance of convicts, board, clothing, guards, etc., varies according to the number of convicts, but will amount to approximately $30,000.00 per annum.” “The amount of taxes levied for road purposes is $34,870.14.” Prior to the issuance of the tax fi. fa., the Southern Bailway Company paid all the taxes sought to be collected from it except $4,365.83, levied under item 1 of the assessment. “20 cents in levy for roads in excess of $4 on the thousand is not embraced in amount for which fi. fa. issued against the railway company. This was deducted, but levy was amended after levy of 42 cents for roads.”

The first question demanding attention is presented by ground 5 of the amendment to the affidavit of illegality. It is this: Was the amendment making item 1 of the levy read, “For bridges and such other public works as court-house and jail, including the building and repairing done upon them by convicts and hired hands, as well as the building and repairing done upon them according to contract,” illegal because it amounted to a new levy against the railway company, it being admitted that “all taxpayers, with some few exceptions, had paid their taxes for the year 1927” prior to the issuing of the fi. fa. and the levy of the same, and prior to the amendment of the tax levy?

Item 1 of the original levy was as follows: “For bridges and public works, including convicts, .60.” The amount of the levy was not changed by the amendment.

In the case of Anthony v. Standard, 146 Ga. 198 (91 S. E. 16), a levy for “contingent expenses, 36%, $7022.74” was attacked as void. This item was amended to show that it was for certain specific purposes. The court held: “Neither the amount of taxes nor the percent, to be collected was altered. The amount to be paid by each taxpayer remained the same, and the amount going to each fund was unchanged. The amendment simply explained that ‘ contingent expenses a term unknown to county taxation, was intended to mean certain things, and that the levy, which was of uncertain meaning, was intended to raise money for certain definite and legal purposes.” A tax levy of “$16 per thousand on $3,476,-074, which will net $55,616,” under which a tax fi. fa. was issued against the plaintiff, was amended by setting out the several purposes for which the levy was made. McGregor v. Hogan, 153 Ga. 473, 484 (112 S. E. 471). Where a tax levy exceeds the limit allowed by law it may be reduced by amendment to bring it within that limit. McMillan v. Tucker, 154 Ga. 154 (9) (113 S. E. 391). Where a tax levy specifies the amount to be collected for each separate purpose, but not the percent, it may be amended to show the percent levied for each item as required by section 514 of the Civil Code of 1910. Sullivan v. Yow, 125 Ga. 326 (54 S. E. 173), and Yow v. Sullivan, 129 Ga. 187 (58 S. E. 662). It also appears from these decisions that an excessive levy may be amended so as to bring it within the legal limit. But, “where the taxpayers in general [of a county] paid their taxes for the year, and executions had been issued against those who had defaulted in the payment of the same, including” a railroad company, “and when, after a levy upon its property,” the defendant filed an affidavit of illegality,” this court held that “it was not then lawful to amend the tax levy by reducing the amount levied to pay the legal indebtedness of the county, . . and by adding the equivalent of such reduction to the amount levied for a separate and distinct purpose; and the court, upon the trial of the issue formed by the affidavit of illegality, properly disregarded such attempted amendment of the tax levy. Seaboard Air-Line Ry. Co. v. McIntosh County, 38 Ga. App. 43 (142 S. E., 699). See also the kindred case of Seaboard Air-Line Ry. Co. v. McIntosh County, 38 Ga. App. 44 (142 S. E. 698). These decisions both are based upon the authority of Ala. Great So. R. Co. v. Wright, 34 Ga. App. 639 (130 S. E. 918), which, in turn, rests upon Wright v. So. Ry. Co., 137 Ga. 801 (74 S. E. 529); Wright v. So. Ry. Co., 28 Ga. App. 545 (112 S. E. 171).

In the case at bar there was no attempt to retain in a tax levy an illegal portion thereof by the simple but illusory expedient of shifting the illegal part to a different item of the levy. The amendment merely explained and amplified the meaning of item 1 without changing either the amount of the levy or the purpose for which it was made, and is not illegal for the reason assigned.

The objection raised in ground 6 of the amendment to the affidavit of illegality, that the levy as amended violates the constitutional provision that all taxes shall be uniform, is without merit.

Ground 6 of the original affidavit of illegality is that “there is no separation of the items for bridges, for public works, and for convicts.” Ground 6-1/2 of the amendment to the affidavit of illegality is that it cannot be determined from said amendment what portion of said levy of six dollars on the thousand is for each purpose set out therein. This contention is not tenable. See Civil Code (1910), §§ 513, 514; McMillan v. Tucker, supra.

In the original levy appears this item: “Eor roads, .42.” Ground 7 of the original affidavit of illegality alleges that since Whitfield county was operating under the alternative road law and had levied $4.20 on each thousand dollars worth of taxable property “for road purposes,” its levy for such purposes was exhausted, and the original levy for “bridges and public works, including convicts,” was invalid for the reason that a part of it was for road purposes. Groipid 8 of the original affidavit is practically the same as ground 7. Ground 7 of the amendment to the affidavit of illegality is to the same effect. It avers that the phrase, “other public works,” includes roads, and that having exhausted the levy for roads, the county had no authority to levy an additional sum for roads or for convicts while engaged in road building.

We have already indicated in the first division of this opinion that the county had the right to amend item 1 of the levy, reading “For bridges and public works, including convicts, .60,” so as to make it read, “For bridges and such other public works as courthouse and jail, including the building and repairing done upon them by convicts and hired hands, as well as the building and repairing done upon them according to contract, .60.” Clearly it would be putting a forced construction upon the above item as amended to hold that the phrase “public works” includes “roads”; and this we decline to do. “All presumptions are in favor of the legality of a tax” (Blalock v. Adams, 154 Ga. 326 (3) (114 S. E. 345), and this court will not adopt a strained construction of an item of a tax levy in order to make that item illegal. There is no merit in any of the three grounds here considered.

In the light of the amendment allowed, there is no merit in ground 9 of the original affidavit of illegality, that “any item levied under the term ‘public works is illegal . . , there being no county tax authorized under the law for ‘public works.”

Ground 10 of the original affidavit of illegality is that if any portion of the first item was levied for bridges costing over $300 each, it was illegal, because such bridges could only be built by contract, and there were no such contracts let. “The law does not require a contract to be made for the construction of the bridges before the commissioners would be authorized to levy a tax to provide funds to pay for the same. If it is necessary to levy a tax for the purpose of building bridges, the levy may be made before the contract is made. Gaines v. Dyer, 128 Ga. 585, 593 (58 S. E. 175). To the same effect is Blalock v. Adams, supra, where the court held: “It is not essential to the validity of a levy of a county tax for a given purpose that a contract for effecting such purpose has previously been made by the proper county authorities.” See also So. Ry. Co. v. Wright, 31 Ga. App. 28 (119 S. E. 542).

Grounds 8 and 9 of the amendment to the affidavit of illegality do not of themselves present any question for decision.

Ground 10 of the amendment to the affidavit of illegality is that $52,305.22 levied under item 1 of the levy was used by Whitfield county “largely for the purpose of supporting the convicts upon the public roads, and not in the erection of or repair of buildings, or bridges of a value in excess of $300 each;” and “that all bridges costing $300 or less were and are a part of the public roads and, under the alternative road law, are payable out of the road fund; and . . that said original levy and the amendment thereto is an effort to augment the road fund, and not to levy a tax under the law.”

Is it true that all bridges costing $300 each or less must be paid for out of the road fund ? Not since the passage of the act of 1920 to amend section 389 of the Civil Code (Ga. L. 1920, p. 58). Under this law, “In any county having a chain-gang the county commissioners of such county, or other persons having charge of such works, shall have the power and authority to purchase material for and use the convicts in building or repairing any public building, bridge, causeway, or other public works in such county, and in such cases the three preceding sections, paragraphs 386, 387, and 388, shall not apply. Where such material is purchased and such work done with the convicts, the county authorities of such county may use the funds of said county arising from taxes levied for such purposes in purchasing said material and in supporting and maintaining the convicts while said work is being done.” In the case of Central of Ga. Ry. Co. v. Wright, 33 Ga. App. 100 (125 S. E. 520), reference was made to the act of 1920 in this language: “Us purpose was to permit counties having a chain-gang, in their discretion, to purchase material for and use the convicts in building or repairing any public building, bridge, causeway, or other public works, whatever the cost might be, where theretofore, except as to work costing less than $300, it had been mandatory, under the law, that such work be let out by contract. The act merely allowed a different method of having an improvement made for which counties were already empowered to levy a tax. See Blalock v. Adams, 154 Ga. 326 (4) (114 S. E. 345). Apparently the act has no reference whatever to the improvement of public roads as distinguished from bridges and other public works.”

It does not appear from the agreed statement of facts that taxes levied under item 1 of the levy were used “largely for the purpose of supporting the convicts upon the public roads and not in the erection of, or repair of, buildings or bridges.” Nor can we say from the statement of facts that the levy is an effort to augment the road fund, and not to levy a tax under the law.

The judgment finding against the affidavit of illegality and ordering the execution to proceed is correct.

Judgment affirmed.

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