author: MCMILLIAN, Judge.

text:
    A12A2006.
    WILLIAMS v. THE STATE.
    (739 SE2d 4)
   MCMILLIAN, Judge.

A jury convicted Christopher Williams of two counts of child molestation, one count of sexual battery and one count of aggravated child molestation. Williams appeals the trial court’s denial of the claims of ineffective assistance of trial counsel he raised in his motion for new trial. We affirm.

The evidence at trial showed that the eight-year-old daughter of Williams’s girlfriend reported to her teacher that Williams had “put his stuff inside” her, leading the teacher to report the matter to the school guidance counselor, who subsequently notified the Department of Family and Children Services (“DFCS”) and the police. The girl made similar statements to the DFCS caseworker, the police officer who responded to the report, and the detective who investigated the case. Although Williams’s girlfriend initially did not believe her daughter’s reports about Williams, she later changed her mind and testified at trial that her daughter told her that Williams had stuck his penis in her on two occasions.

Williams denied the charges, asserting that he had merely checked the child’s underwear for hygiene purposes. He agreed to take a stipulated polygraph examination, which was audio- and video-recorded. The examiner, who testified at trial, concluded that the examination indicated deception and thus determined that Williams did not pass the polygraph.

The doctor who examined the girl testified that she detected no tears or other injuries to the child’s genital area; she also observed that the child had poor hygiene. No male DNA was recovered during the examination. But the doctor observed certain physiological reactions in the child that she testified were consistent with the child’s accusations against Williams and further testified that the lack of trauma to the affected area was not inconsistent with the allegations.

Williams’s motion for new trial asserted the evidence was insufficient to support his convictions and further asserted that the trial court erred in denying his claims that his trial counsel was ineffective in (1) failing to object to the police officer’s hearsay testimony regarding alleged conversations between his girlfriend and her daughter; (2) failing to object to improper opinion testimony from the polygraph examiner; (3) failing to object to the publication of the entire audio and video recordings of the polygraph examination; and (4) failing to provide the State with discovery materials in a timely fashion, resulting in the exclusion of his medical records as evidence at trial. Williams’s post-trial counsel waived a hearing on his motion for new trial, noting “there is no evidence for us to present.” His counsel elected instead to stand on the brief she filed in support of the motion. The trial court subsequently denied the motion. Williams appeals only the denial of his claims of ineffectiveness of counsel.

In considering Williams’s appeal, we apply the two-prong test for determining the validity of a claim of ineffectiveness of counsel established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), which

asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.

(Citation and punctuation omitted.) Philpot v. State, 311 Ga. App. 486, 488-489 (3) (716 SE2d 551) (2011). On appeal of a claim of ineffective assistance, “we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, while we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Id. at 489 (3).

1. Williams first asserts that his trial counsel was ineffective in failing to object to the police officer’s hearsay testimony regarding the victim’s description of conversations she had with her mother, Williams’s girlfriend.

According to the police officer, the victim said that Williams “put his stuff” in her the morning she reported him to her teacher. When her mother returned home that morning after taking the victim’s grandmother to work, she asked the victim what was wrong, and the victim told her what had happened. At that point, Williams’s attorney posed a hearsay objection but did not obtain a ruling from the trial court. Instead, the prosecutor instructed the witness to “just describe... how [the victim] seemed about talking to her mom or whether she described her mom as supportive or angry or anything else.” Despite this instruction, the officer testified about the mother’s statements as related by the victim. The mother told the child that in the future she would have to go with the mother to take the grandmother to work. She also told the child that she would talk to Williams, but she did not want to get him in trouble and get him “locked up.”

Even if Williams’s attorney was ineffective in failing to pose a further hearsay objection or to obtain a ruling on the earlier objection, the officer’s testimony was merely cumulative of other, admissible evidence. The victim testified that she had told her mother about Williams’s actions that morning but her mother did not really do anything. The police officer confirmed that the mother was defensive on the day the victim made the report and made excuses for why Williams might have touched the child. Although the mother denied that the victim had reported Williams’s actions to her that morning, she admitted that she told the victim that she would not leave her alone with Williams again. The mother also said that she did not believe her daughter’s accusations at first and that she covered for Williams, although she later came to believe her daughter’s story.

Thus, even if the officer’s testimony was inadmissible hearsay, “[t]he erroneous admission of hearsay is harmless where, as here, legally admissible evidence of the same fact is introduced. In such a case, the hearsay is cumulative and without material effect on the verdict.” (Punctuation and footnote omitted.) Skinner v. State, 318 Ga. App. 217, 219 (1) (733 SE2d 506) (2012). See also Moody v. State, 277 Ga. 676, 680 (4) (594 SE2d 350) (2004) (admission of hearsay evidence harmless where it “was cumulative of admissible evidence and did not touch upon the central issue of the case”) (citation omitted). And “the failure to object to evidence which is merely cumulative of other admissible evidence does not amount to ineffective assistance of counsel.” (Citation, punctuation and footnote omitted.) Ashmid v. State, 316 Ga. App. 550, 558 (3) (b) (730 SE2d 37) (2012).

2. Williams next argues that his trial counsel was ineffective in failing to object to opinion testimony by the polygraph examiner regarding his hygiene, which he asserts improperly invaded the province of the jury to determine credibility.

The trial court qualified Alphonso Hagan, the polygraph examiner, as an expert witness for the State “to render opinions with respect to polygraph examinations and administration].” Hagan testified that prior to administering the polygraph examination, he spoke with Williams about the victim and explored ways in which he may have touched the child accidentally. Williams told him that the child had a habit of not cleaning herself properly after going to the bathroom, so he would sometimes look in her underpants to see if she had cleaned herself properly. Hagan then testified:

The thing that concerned me about this was Mr. Williams came in that morning, his hygiene was way below standard. I mean I could barely stay in the room with him. So my thing was if someone was concerned of a child’s hygiene, . . . I’m sure he would have taken care of his own hygiene a lot better than, you know, claimin[g] he was so concerned about hers. And that’s one of the things that really stood out with me in dealin[g] with Mr. Williams that day.

“Although an expert witness may not testify as to his opinion of the other witnesses’ truthfulness, the expert witness may express an opinion as to whether medical or other objective evidence in the case is consistent with the other witnesses’ story.” (Citation and punctuation omitted.) Cade v. State, 289 Ga. 805, 809 (5) (716 SE2d 196) (2011). Here, Hagan did not opine as to whether Williams was telling the truth about his interaction with the victim. He merely stated that Williams’s claimed concern regarding the victim’s hygiene appeared to be inconsistent with the state of his own hygiene.

But even if this testimony could be considered improper, Williams has failed to demonstrate that he was prejudiced by it, especially in light of Hagan’s later expert opinion testimony that the polygraph indicated that Williams was “deceptive” in response to his questions regarding the victim’s allegations. Thus, Williams failed to show a reasonable probability that the outcome of his trial would have been different but for his counsel’s failure to object to Hagan’s testimony about Williams’s hygiene.

3. Williams also asserts that his trial counsel was deficient in failing to object when the State did not limit Hagan’s testimony to the results of the polygraph examination, citing Brown v. State, 175 Ga. App. 246, 248-249 (4) (333 SE2d 124) (1985). In Brown, this Court held that the results of a polygraph are probative and admissible upon stipulation of the parties, but, where defendant objected, the Court held that other evidence regarding the polygraph, specifically evidence of the defendant’s refusal to take a polygraph, was not admissible, even where defendant previously stipulated to its admission. Id.

Here, Williams’s counsel raised no objection to the State’s publication of the entire audio and video recording Hagan made of the polygraph session, including his discussions with Williams both before and after the polygraph test. The discussion before the test included a review of Williams’s constitutional rights in connection with the polygraph, an explanation of how the polygraph worked, an exploration as to whether Williams may have touched the victim, Williams’s description of how he checked the victim’s underpants, and his consistent denials that he had touched the victim inappropriately. Following this discussion, Hagan administered the polygraph examination to Williams twice. After Hagan administered the tests, he informed Williams that the results showed that he was deceptive. Hagan then repeatedly accused Williams of lying, stating that the victim was telling the truth and that Hagan knew that Williams had touched her. Williams countered each of Hagan’s accusations with consistent denials that he had touched the girl inappropriately.

Even if this evidence generally would not be admissible, a presumption exists that Williams’s counsel made a strategic decision not to object:

With regard to the deficiency prong [of the Strickland test], there is a strong presumption that trial counsel’s performance is not deficient but falls within the wide range of reasonable trial strategy, in which unwise tactics do not amount to ineffective assistance of counsel.

(Citation omitted.) Allen v. State, 281 Ga. App. 294, 296 (3) (635 SE2d 884) (2006). “[Decisions of when and how to raise objections are generally matters of trial strategy....” (Footnote omitted.) Holmes v. State, 271 Ga. App. 122, 124 (3) (608 SE2d 726) (2004). And “[decisions about. . . whether to object... provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen that tactic.” (Citation omitted.) Allen, 281 Ga. App. at 296 (3).

Williams bore the burden of overcoming the strong presumption that his trial counsel’s decision not to object to the admission of the entire tape was reasonable trial strategy and of proving instead that it constituted deficient performance. See Peterson v. State, 282 Ga. 286, 292 (4) (d) (647 SE2d 592) (2007). And “[because his trial attorney did not testify on the motion for new trial, [Williams] made no affirmative showing that the purported evidentiary deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.” (Citation and punctuation omitted.) Morgan v. State, 275 Ga. 222, 227 (10) (564 SE2d 192) (2002). The presumption of reasonable trial strategy is “extremely difficult to overcome when the defendant fails to call the trial attorney to testify on the motion for new trial.”

(Punctuation and footnote omitted.) Boykin v. State, 264 Ga. App. 836, 841 (5) (592 SE2d 426) (2003).

Moreover,

[effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that [appellant] and his present counsel disagree with the decisions made by trial counsel does not require a finding that [Williams’s] original representation was inadequate.

(Citation and footnote omitted.) Hazelrigs v. State, 255 Ga. App. 784, 786 (2) (567 SE2d 79) (2002). Although we have no testimony, the record reflects that Williams’s trial counsel cross-examined Hagan about the extent and purpose of his questions before and after the test. He also relied on Hagan’s behavior on the videotape in closing argument to suggest that Hagan engaged in “a back and forth argument” with Williams before the test to get him upset and thus affect his performance. He also cited to Hagan’s continuing argument with Williams after the test to underscore that Williams was consistent in saying that he was telling the truth. Although other attorneys may not have used this evidence in quite the same way, Williams failed to carry his burden of overcoming the presumption that the failure to object was reasonable trial strategy by his trial counsel. Accordingly, the trial court did not err in denying his claim of ineffective assistance of counsel on this ground.

4. Williams further contends that his trial counsel was deficient in failing to produce his medical records to the State “no later than five days prior to trial” as required under OCGA § 17-16-4 (b) (1), resulting in the exclusion of the records at trial.

Although the trial court excluded the actual medical records from evidence, the court noted that this ruling did not necessarily exclude testimony regarding the contents of the records from those with personal knowledge. And, in fact, both Williams and his mother testified to his prior use of medication for his “nerve problems.” But in any event, because Williams failed to proffer the excluded medical records, we cannot review his claim that the exclusion of this evidence was prejudicial to his defense and that his trial counsel was ineffective in failing to comply with OCGA § 17-16-4 (b) (1). See White v. State, 312 Ga. App. 421, 429-430 (3) (c) (718 SE2d 335) (2011).

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

Decided February 25, 2013.

Amy L. Ihrig, for appellant.

Larry Chisolm, District Attorney, Emily C. Puhala, Margaret E. Heap, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A12A2249.
    GRADY v. THE STATE.
    (743 SE2d 22)
   Ray, Judge.

After a jury trial, Anthony James Grady was convicted of a misdemeanor charge of theft by shoplifting. Grady appeals the denial of his motion for new trial, contending that the evidence adduced at trial was insufficient to support his conviction. Finding no error, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

So viewed, the record shows that Grady and a friend, Yolanda Hartsfield, entered a Wal-Mart store in Lilburn on September 4, 2010. Hartsfield brought two racquetball racquets into the store, intending to return or exchange them. Hartsfield showed the racquets to an employee at the entrance of the store. The employee scanned the racquets and handed her two yellow return stickers with a barcode on them. Hartsfield carried the racquets into the store, and she and Grady perused the store independently of each other. Grady went to the store’s sports department and picked up two tennis racquets that were bigger and more expensive than the racquets Hartsfield sought to return. Grady and Hartsfield met up again in the candle aisle of the store, and Hartsfield placed the racquetball racquets on a shelf of that aisle and gave Grady the yellow stickers. Grady then brought the two more expensive tennis racquets to the customer service desk and attempted to return them using the yellow stickers. The customer service employee who handled the return testified that Grady “got kind of hysterical” and angry when she informed him that the items he was attempting to return did not match the items reflected on the barcode of his yellow return stickers. The yellow stickers indicated that Hartsfield and Grady brought two racquetball racquets with a total value of about $33 into the store, and Grady attempted to return two tennis racquets with a different brand name that cost $68. The employee then spoke with an assistant manager, David Súber, who reviewed the surveillance video with Wal-Mart’s loss prevention team and determined that Grady had not entered the store with the more expensive tennis racquets. Súber then contacted the police and instructed the customer service employee to give Grady a Wal-Mart gift card valued at $68 in exchange for the racquets. When Grady left the store, he was approached by Wal-Mart employees and asked to step inside the store, where they began an investigation.

In his sole enumeration of error, Grady contends that the evidence was insufficient to support his conviction because there was insufficient proof that he intentionally accepted a Wal-Mart gift card worth more than the cost of the two racquetball racquets. Specifically, Grady argues that the State could not prove the element of intent because he testified that, due to his glaucoma-induced poor eyesight, he was unable to read the receipt handed to him by the cashier, and thus, he had no way of knowing that he had received a credit of $68 instead of $33.

The crime of theft by shoplifting is defined, in relevant part, as follows:

A person commits the offense of theft by shoplifting when such person alone or in concert with another person, with the intent of appropriating merchandise to his or her own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, . . . [c] onceáis or takes possession of the goods or merchandise of any store or retail establishment^]

Decided February 25, 2013.

Sharon L. Hopkins, for appellant.

Rosanna M. Szabo, Solicitor-General, Atinuke O. Fawole, Assistant Solicitor-General, for appellee.

The State did not have to prove that Grady knew that the gift card he received was valued at $66 to convict him of shoplifting. This Court has held that, to prove intent, it is enough to show that a defendant made “[f]alse statements that [the] merchandise [had] been paid for and [carried] the merchandise around the store,” and the fact that a defendant “attempt [ed] to obtain a ‘refund’ or merchandise voucher is simply additional evidence of this intent.” Further, although Grady testified that he was unaware that he had received a gift card reflecting the value of the more expensive racquets, “a jury is authorized to believe or disbelieve all or any part of the testimony of witnesses[,]” and “as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” Accordingly, we find that the evidence presented here was sufficient to enable a rational trier of fact to find Grady guilty beyond a reasonable doubt of the offense of theft by shoplifting.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-8-14.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Citation and punctuation omitted.) Gaskins v. State, 318 Ga. App. 8 (733 SE2d 338) (2012).

       OCGA § 16-8-14 (a) (1).

        Gilliam v. State, 237 Ga. App. 476, 480-481 (3) (517 SE2d 348) (1999).

       Id.

       (Citations and punctuation omitted.) Knight v. State, 311 Ga. App. 367, 368 (1) (715 SE2d 771) (2011).

       See Gilliam, supra at 480 (3). Accord Alford v. State, 292 Ga. App. 514, 515 (1) (a) (664 SE2d 870) (2008); Foster v. State, 192 Ga. App. 720 (386 SE2d 383) (1989).


author: BARNES, Presiding Judge.

text:
    A12A1713.
    RENTON v. WATSON.
    (739 SE2d 19)
   BARNES, Presiding Judge.

Dana Renton filed an amended complaint against Monica Watson in which she sought damages for malicious prosecution, defamation, and intentional infliction of emotional distress. The trial court granted Watson’s motion to dismiss the amended complaint for failure to state a claim upon which relief could be granted and awarded her attorney fees. For the reasons discussed below, we affirm the trial court’s dismissal of the malicious prosecution and emotional distress claims, but reverse its dismissal of the defamation claim and its award of attorney fees.

Under OCGA § 9-11-12 (b) (6), a motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation and punctuation omitted.) Anderson v. Daniel, 314 Ga. App. 394, 395 (724 SE2d 401) (2012). Additionally, in considering whether a motion to dismiss should be granted, the trial court may consider exhibits attached to and incorporated into the complaint. See OCGA § 9-11-10 (c); Bakhtiarnejad v. Cox Enterprises, 247 Ga. App. 205, 208 (1) (541 SE2d 33) (2000).

Mindful of these principles, we turn to the allegations in the present case. The complaint alleges that Renton discovered that Watson was having an extramarital affair, which caused Watson and her husband to divorce. According to the complaint, Watson, who “harbor[ed] ill will towards [Renton]” for discovering the affair, maliciously and without any foundation applied for a warrant to have Renton arrested for forgery. Consequently, Renton was ordered to appear at a hearing on the warrant application before the Magistrate Court of Carroll County where Watson was to appear as the prosecuting witness.

The complaint further alleges that at the beginning of the hearing on the warrant application, Watson falsely declared that Renton had forged her name when the magistrate inquired about the nature of the case. However, before the hearing proceeded any further, the magistrate recessed the proceedings so that counsel for the parties could attempt to negotiate a resolution. After counsel reached an agreement, Watson voluntarily dismissed her warrant application without prejudice.

Renton subsequently filed her verified complaint for damages against Watson, asserting claims for malicious prosecution, intentional infliction of emotional distress, punitive damages, and attorney fees. Watson answered, moved to dismiss the complaint for failure to state a claim upon which relief could be granted under OCGA § 9-11-12 (b) (6), and moved for attorney fees under OCGA § 9-15-14. Renton responded to the motions and also amended her complaint to add a claim for defamation per se. Renton attached as an exhibit to her amended complaint the transcript of the hearing before the magistrate on the arrest warrant application.

Following a hearing on the motion to dismiss, the trial court granted Watson’s motion and dismissed Renton’s amended complaint. The trial court concluded that the malicious prosecution claim failed as a matter of law because an arrest warrant was never issued. The trial court concluded that the defamation and intentional infliction of emotional distress claims were barred by the absolute privilege afforded for statements made in judicial proceedings. The trial court also awarded $1,400 in attorney fees to Watson on the ground that Renton had failed to present a justiciable issue of law or fact. This appeal followed.

1. Renton first contends that the trial court erred in dismissing her malicious prosecution claim on the ground that an arrest warrant had never been issued. We disagree.

The six essential elements of a malicious prosecution claim are “(1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff.” Wal-Mart Stores v. Blackford, 264 Ga. 612, 613 (449 SE2d 293) (1994). See OCGA § 51-7-40. As the fourth element makes clear, “[t]o be actionable as a malicious prosecution under [our] precedents, an attempt to have someone prosecuted must result in the issuance of a valid warrant, summons, accusation, or other formal process.” Peterson v. Banker, 316 Ga. App. 571, 572 (730 SE2d 89) (2012) (citing cases).

The allegations of the amended complaint and the transcript of the warrant application hearing reflect that the warrant application submitted by Watson did not result in the issuance of an arrest warrant. Rather, Watson voluntarily dismissed her warrant application, and Renton was never arrested. Given that no arrest warrant was issued by the magistrate, the trial court properly dismissed her malicious prosecution claim. See Peterson, 316 Ga. App. at 572 (trial court erred in awarding damages for malicious prosecution “for the warrant applications that resulted in the issuance of no warrant”); Cox v. Turner, 268 Ga. App. 305, 306 (1) (601 SE2d 728) (2004) (“Since it is clear from the pleadings that a warrant was not issued, [the plaintiff’s] claim for malicious prosecution must fail.”). See also Swift v. Witchard, 103 Ga. 193 (2) (29 SE 762) (1897) (“Simply making an affidavit before a justice of the peace, charging one with an offense against the criminal laws of this State, when not followed up by an arrest, does not render the prosecution, even if malicious and without probable cause, actionable.”).

Renton, however, emphasizes that a malicious prosecution claim can be predicated on a valid warrant, accusation or summons. See Wal-Mart Stores, 264 Ga. at 613. Because she was ordered to appear before the magistrate for the hearing on the warrant application, Renton maintains that she was “summoned” before a court and thus satisfied the fourth element of a malicious prosecution claim even without the issuance of an arrest warrant. But “summons” in this context means formal legal process charging a person with a criminal offense and conferring a court jurisdiction over the subject matter. See Peterson, 316 Ga. App. at 572 (malicious prosecution claim requires “issuance of a valid warrant, summons, accusation, or other formal process”) (emphasis supplied); Cary v. Highland Bakery, 50 Ga. App. 553, 554-555 (179 SE 197) (1935) (malicious prosecution claim requires that “the warrant or other accusation or summons charging the plaintiff with a criminal offense be a valid warrant, accusation or summons, charging such person with some criminal offense”) (emphasis supplied). For example, certain misdemeanor offenses may be tried upon a summons rather than an accusation. See, e.g., OCGA §§ 17-7-71 (b) (2); 17-7-72; 17-7-73. The magistrate’s order requiring Renton to attend the warrant application hearing thus was not a “summons” as that term is understood in the malicious prosecution context.

Renton relies upon McNeely v. Home Depot, 275 Ga. App. 480, 482 (621 SE2d 473) (2005), as authority for the proposition that a malicious prosecution claim can be brought so long as the plaintiff is required to appear before a court. In McNeely, we held that evidence that the plaintiff was brought before a judge raised an inference that he was taken before a “committing court,” which went to the issue of whether the plaintiff was “prosecuted,” the first element of a malicious prosecution claim. See Wal-Mart Stores, 264 Ga. at 613 (setting out six elements of a malicious prosecution claim); Page v. Citizens Banking Co., 111 Ga. 73, 84 (4) (36 SE 418) (1900) (inquiry before a “committing court” amounts to a “prosecution”). See also OCGA § 51-7-42 (“[A]n inquiry before a committing court or a magistrate shall amount to a prosecution.”). But that was a separate legal question from whether the fourth element of a malicious prosecution claim — issuance of a valid warrant, summons, or accusation — had been satisfied. See Swift, 103 Ga. at 193 (2) (noting that “there must at least have been an arrest and an inquiry before a committing court,” before a malicious prosecution claim is actionable) (emphasis supplied). Moreover, in discussing the factual background in McNeely, this Court made clear that an arrest warrant had been sworn out against the plaintiff, with the result that he had been arrested and jailed for several days before he was brought before a judge. See McNeely, 275 Ga. App. at 481. Because the fourth element of a malicious prosecution claim clearly had been satisfied and was not at issue in McNeely, Renton’s reliance on the case is misplaced.

2. Renton next contends that the trial court erred in dismissing her defamation claim on the ground that it was barred by the absolute privilege for statements made in judicial proceedings. We conclude that the trial court was correct to dismiss Renton’s defamation claim to the extent that it was predicated on statements made by Watson in her warrant application and at the hearing on the application because those statements were absolutely privileged. But, construed in Renton’s favor, her complaint also alleges the communication of defamatory statements to third parties that was not privileged. Consequently, the trial court committed error by dismissing Renton’s defamation claim in toto.

Generally, there are four elements in a cause of action for defamation: (1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm.

(Citation and punctuation omitted.) Wertz v. Allen, 313 Ga. App. 202, 205 (1) (721 SE2d 122) (2011). Some statements, although defamatory, are not actionable because they are considered privileged. See OCGA §§ 51-5-7; 51-5-8. There are two types of privilege, absolute and conditional. Wertz, 313 Ga. App. at 206 (1). “Communications which are afforded an absolute privilege cannot form the basis of a defamation action, regardless of the falsity of the statements or the speaker’s malicious intent; conditionally privileged statements, on the other hand, are actionable upon a showing of malice.” (Citation and punctuation omitted.) Id.

OCGA § 51-5-8, which grants an absolute privilege from suit for defamatory statements made in judicial “pleadings,” provides:

All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.

See Stewart v. Walton, 254 Ga. 81, 82 (2) (326 SE2d 738) (1985) (noting that OCGA § 51-5-8 creates an absolute privilege from suit). The absolute privilege afforded by OCGA § 51-5-8 is not limited to “pleadings” as defined by OCGA § 9-11-7 (a) of the Civil Practice Act but “has been more broadly construed ... to include ‘official court documents’ and acts of ‘legal process.’ ” (Citations and punctuation omitted.) Williams v. Stepler, 227 Ga. App. 591, 595 (3) (490 SE2d 167) (1997).

Furthermore, in addition to OCGA § 51-5-8, Georgia courts have afforded an absolute privilege to statements made in court by a witness that are responsive to a question posed by the trial court or counsel. See Rivers v. Goodson, 188 Ga. App. 661 (373 SE2d 843) (1988); Gallaher v. Teeple, 183 Ga. App. 31, 35 (2) (357 SE2d 808) (1987); Hendrix v. Daughtry, 3 Ga. App. 481, 482-483 (60 SE 206) (1908). Likewise, a proffer of a witness’s proposed testimony made to the trial court is absolutely privileged, if the testimony itself would be relevant to the proceedings. See Bell v. Anderson, 194 Ga. App. 27, 28-29 (389 SE2d 762) (1989).

The amended complaint alleges that Watson falsely accused Renton of forgery in her arrest warrant application and at the hearing on the warrant application in response to an inquiry from the magistrate. We conclude that Watson’s allegedly false statements were absolutely privileged under OCGA § 51-5-8 and our precedent affording an absolute privilege to responsive statements made by a witness in court. See Bell, 194 Ga. App. at 28-29; Rivers, 188 Ga. App. at 661; Gallaher, 183 Ga. App. at 35 (2); Hendrix, 3 Ga. App. at 482-483. See also Watkins v. Laser /Print-Atlanta, 183 Ga. App. 172, 173 (2) (358 SE2d 477) (1987), citing Francis v. Wood, 75 Ga. 648 (1886) (“It is well established that an affidavit before a magistrate, made for the purpose of causing an arrest, will not support an action for libel, though falsely and maliciously made.”). Hence, the trial court committed no error in dismissing Renton’s defamation claim predicated on the allegedly false statements by Watson made in the arrest warrant application and the warrant application hearing.

Significantly, however, another paragraph of the amended complaint pertaining only to the defamation claim alleges more generally that Watson made her false statements about Renton “to third parties without privilege.” The paragraph is broad and conclusory, but that is not fatal to a plaintiff’s claim at the motion-to-dismiss stage. See Ledford v. Meyer, 249 Ga. 407, 408-409 (2) (290 SE2d 908) (1982) (noting in defamation case that “conclusions may generally be pleaded under the Civil Practice Act” and that “[u]nder this ‘notice’ theory of pleading [,] it is immaterial whether a pleading states conclusions or facts as long as fair notice is given, and the statement of claim is short and plain”) (citations, punctuation and emphasis omitted). See also Infinite Energy v. Pardue, 310 Ga. App. 355, 361 (3) (713 SE2d 456) (2011) (plaintiff’s conclusory allegations regarding malice did not render defamation claim subject to dismissal for failure to state a claim upon which relief could be granted).* * In light of this paragraph, we cannot say that Renton could not possibly introduce evidence within the framework of her amended complaint to support a claim for defamation. It is conceivable that Renton could introduce evidence showing that Watson made false statements to third parties about her having committed forgery — separate and apart from Watson’s statements made in the arrest warrant application and at the hearing on the application — that were not privileged. Accordingly, the trial court erred in dismissing Renton’s defamation claim to the extent that the amended complaint could be construed as alleging that Watson communicated unprivileged, defamatory statements to third parties outside the context of the warrant application proceedings.

3. Renton next contends that the trial court erred in dismissing her claim for intentional infliction of emotional distress. We disagree and affirm the dismissal of this claim, albeit on a different ground than the trial court. See Pollman v. Swan, 314 Ga. App. 5, 5-6 (723 SE2d 290) (2011) (“A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.”) (citations, punctuation and footnote omitted).

The elements of a cause of action for intentional infliction of emotional distress are: (1) intentional or reckless conduct; (2) that is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress. Further, liability for this tort has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

(Citations and punctuation omitted.) Ferrell v. Mikula, 295 Ga. App. 326, 333 (3) (672 SE2d 7) (2008). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” (Citation and punctuation omitted.) Frank v. Fleet Finance, Inc. of Ga., 238 Ga. App. 316, 318 (518 SE2d 717) (1999).

While the amended complaint alleges that Watson submitted an application for an arrest warrant containing false allegations against Renton, the amended complaint and transcript of the warrant application hearing also reflect that Watson voluntarily dismissed the application before a warrant was issued and thus before Renton was arrested. Under these circumstances, we conclude as a matter of law that Watson’s conduct was not so atrocious or utterly intolerable as to rise to the level of intentional infliction of emotional distress, and the trial court committed no error in dismissing the claim. Cf. Amstadter v. Liberty Healthcare Corp., 233 Ga. App. 240, 243 (2) (503 SE2d 877) (1998) (mere filing of a lawsuit does not rise to the level of outrageousness to support an emotional distress claim).

4. Lastly, Renton contends that the trial court erred in granting Watson’s request for attorney fees under OCGA § 9-15-14 on the ground that Renton had filed an action that lacked any justiciable issue of law or fact. We agree.

The trial court’s order awarding attorney fees tracks the statutory language of OCGA § 9-15-14 (a), which “provides that the trial court shall award reasonable and necessary attorney fees where the offending party’s position lacked any justiciable issue of law or fact so that it could not be reasonably believed that a court would accept it.” (Citation and punctuation omitted.) La Petite Academy v. Prescott, 234 Ga. App. 32, 34 (2) (506 SE2d 183) (1998). We review a trial court’s award of fees made pursuant to OCGA § 9-15-14 (a) under an “any evidence” standard. Id. Yet, “to the extent that the ‘evidence’ relevant to the question of attorney fees consists of the state of the law, we make our own assessment of that ‘evidence’ and decide for ourselves whether the claim asserted below presented a justiciable issue of law.” (Citations and punctuation omitted.) Gibson Constr. Co. v. GAA Acquisitions I, 314 Ga. App. 674, 676 (725 SE2d 806) (2012).

Guided by these principles, we conclude that the trial court erred in awarding attorney fees to Watson. With respect to the malicious prosecution claim, Renton, in opposing Watson’s motion for attorney fees, attached a superior court order from a different case involving different parties upon which Renton relied in bringing her claim. In that order, a superior court judge in DeKalb County denied the defendant’s motion for summary judgment on the plaintiff’s malicious prosecution claim, where the plaintiff had been ordered to appear before a magistrate judge regarding the defendant’s warrant applications, even though no warrants ultimately had been issued. The superior court referred to the plaintiff as having been “summoned” to appear before the magistrate and construed the case of McNeely, 275 Ga. App. at 482, as authorizing the plaintiffs malicious prosecution claim, despite the fact that no warrants had issued.

Because another superior court had already accepted the same legal theory advanced by Renton in this case, she could have reasonably believed that a court would accept her malicious prosecution claim. Cf. Executive Excellence v. Martin Bros. Investments, 309 Ga. App. 279, 288-289 (3) (710 SE2d 169) (2011) (fact that dissenting judges deemed sellers’ slander-to-title claims viable “shows that the sellers could have reasonably believed that a court would accept their claims, there was substantial justification for them, and there is no basis for a finding that the sellers brought the claims for delay or harassment”). Although in Division 1 we rejected Renton’s legal theory and found her reliance on McNeely misplaced,

we must keep in mind that OCGA § 9-15-14 (a) is intended to discourage the bringing of frivolous claims, not the presentation of questions of first impression about which reasonable minds might disagree or the assertion of novel legal theories that find arguable, albeit limited, support in the existing case law and statutes.

Gibson Constr. Co., 314 Ga. App. at 677. See OCGA § 9-15-14 (c) (“No attorney or party shall be assessed attorney’s fees as to any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority.”). In light of these considerations, we conclude that the trial court erred in awarding attorney fees relating to Renton’s malicious prosecution claim.

We reach the same conclusion as to Renton’s defamation and emotional distress claims. As discussed in Division 2, Renton’s defamation claim should not have been dismissed for failure to state a claim upon which relief could be granted, and thus fees should not have been awarded based on that claim.

With regard to Renton’s claim for intentional infliction of emotional distress, some support for the claim could be gleaned from the cases cited in footnote 5 in Division 3. Although we ultimately concluded in Division 3 that those cases were distinguishable from the present case given that Watson voluntarily dismissed her warrant application and no arrest occurred, we cannot say that Renton’s

Decided February 26, 2013.

Ernest D. Napier III, for appellant.

Tisinger Vance, Kenneth B. Crawford, Rebecca J. Dobras, for appellee.

emotional distress claim was entirely foreclosed by existing precedent or without some arguable support in the case law. See Gibson Constr. Co., 314 Ga. App. at 677. It follows that the trial court erred in awarding attorney fees based on Renton’s emotional distress claim, as it did with respect to her malicious prosecution and defamation claims. We therefore reverse the trial court’s award of attorney fees under OCGA § 9-15-14 (a).

Judgment affirmed in part and reversed in part.

McFadden and McMillian, JJ., concur.

       The privilege afforded by OCGA § 51-5-8
      is not intended so much for the protection of those engaged in the public service and in the enactment and administration of law, as for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages.
      (Citation and punctuation omitted.) Fedderwitz v. Lamb, 195 Ga. 691, 696 (25 SE2d 414) (1943).

       Relying upon Erfani v. Bishop, 251 Ga. App. 20, 24-25 (2) (b) (553 SE2d 326) (2001), Renton contends that statements subject to the privilege afforded by OCGA § 51-5-8 should be actionable if the defendant is alleged to have made the statements falsely and with malice. But, as discussed above, our precedent demonstrates that OCGA § 51-5-8 affords statements falling within its parameters an absolute rather than a conditional privilege, and a defamatory statement afforded an absolute privilege is not actionable, “regardless of the falsity of the statements or the speaker’s malicious intent.” (Citation and punctuation omitted.) Wertz, 313 Ga. App. at 206 (1). To the extent that Erfani suggests that defamatory statements falling within OCGA § 51-5-8 are actionable if made falsely and with malice, that suggestion is nonbinding dicta because the plaintiff in that case did not allege that the defendant made the statements at issue falsely and with malice, and because the Court concluded that the defamation claim was barred by the applicable statute of limitation. See Erfani, 251 Ga. App. at 24 (2) (b).

       “The proper remedy for [a defendant] seeking more particularity is by motion for a more definite statement” rather than by motion to dismiss for failure to state a claim. Cochran v. McCollum, 233 Ga. 104, 105 (210 SE2d 13) (1974). See OCGA § 9-11-12 (e). A trial court also has the inherent authority to order a more definite statement even in the absence of a motion filed by the defendant. See Bush v. Bank of New York Mellon, 313 Ga. App. 84, 92 (720 SE2d 370) (2011).

       The trial court dismissed Renton’s emotional distress claim on the ground that the allegedly false statements made by Watson in the arrest warrant application and the hearing were absolutely privileged under OCGA § 51-5-8. But OCGA § 51-5-8 applies only to libel claims. See Morrison v. Morrison, 284 Ga. 112, 113 (2) (663 SE2d 714) (2008); Kluge v.Renn, 226 Ga. App. 898, 900 (2) (487 SE2d 391) (1997). Thus, Renton’s emotional distress claim could not be dismissed pursuant to OCGA § 51-5-8. Nevertheless, Watson also argued in the trial court that Renton’s emotional distress claim should be dismissed on the alternative ground that her conduct did not rise to the requisite level of outrageousness.

       The present case is distinguishable from emotional distress cases where the defendant carried through and procured the plaintiff’s arrest. See Turnage v. Kasper, 307 Ga. App. 172, 175-177, 183-184 (1) (c) (704 SE2d 842) (2010); Wal-Mart Stores v. Johnson, 249 Ga. App. 84, 87 (3) (547 SE2d 320) (2001), overruled in part on other grounds, Ferrell, 295 Ga. App. at 333 (2); K-Mart Corp. v. Lovett, 241 Ga. App. 26, 27, 29 (3) (525 SE2d 751) (1999), overruled on other grounds, Golden Peanut Co. v. Bass, 249 Ga. App. 224, 233-234 (2) (547 SE2d 637) (2001); Fleming v. U-Haul Co. of Ga., 246 Ga. App. 681, 682, 686 (5) (541 SE2d 75) (2000); Gordon v. Frost, 193 Ga. App. 517, 520-522 (1) (388 SE2d 362) (1989).

       OCGA § 9-15-14 (a) states in relevant part:
      In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. . . .

       Watson’s motion for sanctions for frivolous appeal under Court of Appeals Rule 15 (b) and OCGA § 5-6-6 is hereby denied.


author: Luke, J.

text:
    14786.
    FORTSON et al. v. JENNINGS.
    The renewal note sued on was not subject to the defense set up, based upon alleged misrepresentations in the sale of the partnership interest for which the original note was given; and the court did not err in directing a verdict for the plaintiff.
    The rulings complained of as to the admissibility of evidence, even if erroneous, do not require a new trial.
    Decided March 6, 1924.
    Rehearing denied April 15, 1924.
    Complaint; from Wilkes superior court — Judge Shurley. June 5, 1923.
    Application for certiorari was denied by the Supreme Court.

      William Wynne, Colley & Colley, for plaintiffs in error.

      Clement H. Sutton, A. W. White, contra.
   Luke, J.

Jennings sued Fortson and another on a promissory note. The defendants admitted a prima facie case and assumed the burden of proof. They pleaded that Jennings'and Fortson were formerly copartners; that Fortson purchased Jennings’ interest and assumed his liabilities in the partnership business; that the note sued .on was given by Fortson as principal, and the other defendant as surety, to cover a part of such purchase price; that the agreement as to the purchase price was induced by an inventory of the firm’s assets and liabilities, prepared by Jennings, in which he falsely and fraudulently omitted certain liabilities of the firm and incorporated assets not possessed by it; that, because of such fraud on the part of the plaintiff, the note was void; and that, if the note should not be adjudged void for fraud, the defendants should at least recoup for the items thus wrongfully included in and omitted from the inventory. The sufficiency of the plea does not appear to have been tested by demurrer. From evidence which is uncontradicted it appears that the alleged contract was made on November 8, 1920; that in January, 1921, accountants employed by Fortson prepared for him a complete and accurate inventory of the assets and liabilities as of December 31, 1920, furnishing him with a written statement thereof on January 10, 1921; that Fortson thereafter, on January 15, 1921, made a part payment on the first note given.by him and gave a renewal note for the balance, dating it as of January 1, 1921, the renewal note being the one now sued on; and that, although Jennings remained with the business as Fortson’s employee until May, 1921, Fortson made no complaint to him respecting any of the matters and things now set up by the defendants until suit was brought on the renewal note.

(a) The direction of a verdict for the plaintiff was not erroneous. McDaniel v. Mallary, 6 Ga. App. 848 (2) (66 S. E. 146).

(5) Eulings on the admission of evidence, of which complaint is made in the motion for a new trial, even if they appear to be erroneous, are not of such a nature as to affect the controlling features of the evidence stated above.

(c) For no reason assigned was the judgment overruling defendants’ motion for a new trial erroneous.

Judgment affirmed.

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


text:
    14813.
    Girard Fire and Marine Insurance Co. v. Carter.
   Luke, J.

1. Where property covered by a policy of fire insurance is destroyed by fire, and the insured and an agent of the company agree upon a stated sum as the amount of the loss, and accordingly prepare a proof of loss for submission to the company, the agent’s assent to such agreed sum of loss being conditioned upon approval by the company, and the insured’s assent thereto being conditioned upon the company’s prompt acceptance and payment of such sum, if the company refuses to ratify such agreement of its agent and settle the claim by the payment of such agreed sum, the insured is not estopped from making an additional proof of loss in which he claims a greater amount as damages, nor is he . estopped from subsequently suing the company and recovering a sum greater than that upon which he and the company’s agent so conditionally agreed.

Decided March 6, 1924.

Rehearing denied April 16, 1924.

Action on fire-insurance policy; from city court of Sandersville —Judge Goodwin. June 11, 1923.

Application for certiorari was denied by "the Supreme Court.

Smith, Hammond & Smith, J. Hines Wood, for plaintiff in error. M. L. Gross, M. W. J or dan, contra.

(a) This ease differs in its facts from Travelers’ Ins. Co. v. Thornton, 119 Ga. 455 (6) (46 S. E. 678).

2. Stipulations and conditions in a policy of Are insurance that it shall be void, unless such and such things are true, are waived, where the company’s ag-ent by whom the policy was delivered to the insured knew at and before the time of making the delivery all the facts to which the stipulations and conditions related, and where the company made no •effort to void the policy until after notice of a loss thereunder. Mechanics & Traders Ins. Co. v. Mutual Real Estate & Building Asso., 98 Ga. 262 (1) (25 S. E. 457).

3. The special grounds of the motion for new trial not covered by the foregoing rulings are without substantial merit. The conflicting evidence presented questions for determination by the jury alone, and authorized the verdict returned by them, which, having the approval of the trial judge, will not be disturbed by this court.

Judgment affirmed.

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


text:
    15110.
    Richardson v. DuPree et al.

   Luke, J.

1. The affidavit which section 5640 of the Civil Code (1910) requires to be annexed by the defendant to an amendment to his plea or answer when offered after the time allowed for answer has expired must aver (1) “that at the time of filing the original plea or answer he did not omit the new facts or defense set out in the amended plea or answer for the purpose of delay,” and (2) “that the amendment is not now offered for delay.” Columbus Showcase Co. v. Brinson, 128 Ga. 487 (1) (57 S. E. 871); Gross v. Whitely, 128 Ga. 79 (2) (57 S. E. 94); Beacham v. Wrightsville & T. R. Co., 125 Ga. 362 (2) (54 S. E. 157).

(a) Where, as in this case, the affidavit avers merely that “this amendment is not offered for the purpose of delay,” without averring that such new matter is not omitted from the original plea or answer for the purpose of delay, and especially where the defendant is present at the trial, there is no abuse of discretion in disallowing the amendment, even if it be otherwise good. Bass Dry Goods Co. v. Granite City Mfg. Co., 119 Ga. 124 (4) (45 S. E. 980); Benson v. Marietta Fertilizer Co., 139 Ga. 691 (1) (77 S. E. 1125).

2. Conceding (but not deciding) that the court erroneously ruled that the subpoena duces tecum, which issued at the instance of the defendant, was lacking in the definiteness required by law, the error was rendered harmless when the required evidence, in so far as it was shown to have ever been in the possession or control of the witness, was otherwise made available to the defendant at the trial and was actually introduced in evidence by him.

3. The suit was upon a written contract, to recover commissions for negotiating the purchase and sale of certain real estate. The contract stipulated all the terms and conditions of the sale as between the owners and the prospective purchaser, and further stipulated that, in the event the title was found satisfactory and the contemplated sale was consummated, then the purchaser would pay the brokers a sum stated as their commission. The contract was signed by the sellers, the brokers, and the purchaser, and expressly designated the brokers as the agents of the sellers. It appeared, without controversy, that the sale was consummated, and that the contract was fully executed as between the sellers and the purchaser; and this suit was brought by the brokers alone against the purchaser alone, upon that clause of the contract wherein he stipulated to pay their commission. Eeld: Under these facts, the court did not err in charging the jury that “the contract, so far as it refers to" these plaintiffs, is a separate contract from the contract of purchase itself.”

4. Where dual agency on the part of a broker is relied on to'defeat his claim for commissions, the defendant must prove, not only the fact of such dual agency, but also that it was not known to both parties. Winer v. Flournoy Realty Co., 27 Ga. App. 87 (3) (107 S. E. 398), and citations.

(a) Where landowners entered into a contract of sale with a prospective purchaser, conditioned upon furnishing satisfactory title, designating a certain firm of brokers as the owners’ agent, and stipulating that, in the event the sale was consummated, the purchaser would pay such brokers’ commission, the mere fact that the purchaser undertook to pay such commission did not of itself alone create the relation of principal and agent between the purchaser and the brokers. Civil Code (1910), §§ 3569, 3574.-

(B) In no view of the case did the defendant establish his defense based on dual agency.

5. The defendant pleaded that the contract described above was vitiated by the fraud of the plaintiffs, (1) in knowingly misrepresenting the price at which the owners were willing to sell the property in question, and (2) in falsely representing that the owners would not allow the plaintiffs’ commission out of that price, thereby inducing the defendant to purchase the property at the greater price so named by the plaintiffs, and to agree to pay them a stated sum as commission. The sufficiency of that plea, not being brought into question by demurrer, will not be decided. The evidence thereon was in sharp conflict, and the finding of, the jury was in favor of the plaintiffs. The defendant, however, assigns error upon several excerpts from the charge of the court relating to that plea. Eeld:

(a) The excerpts complained of are not subject to- the criticisms urged against them.

(B) Even if such instructions were erroneous, they would afford no cause for a new trial, because it appears, without contradiction, that, before the contract of sale was consummated, the defendant was correctly informed by the owners of the property with reference to the facts claimed to have been fraudulently misrepresented to him; that he nevertheless continued to deal with tüe plaintiffs as before, until the contract of sale was consummated; and that, in such subsequent dealings, a stipulation in the contract whereby the defendant was to pay all taxes on the property for the then-current year was, by agreement of all parties at interest, so changed that one third of such taxes was payable by the defendant, one third by the owners, and the other third by the plaintiffs. “If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon the discovery of the facts, at once announce his purpose and adhere to it.” Hunt v. Hardwick, 68 Ga. 100 (3 a).

Decided March 6, 1924.

Rehearing denied April 15, 1924.

Action for breach of contract; from city court of Atlanta— Judge Eeid. October 6, 1923.

Application for certiorari was denied by the Supreme Court.

Alston, Alston, Foster & Moise, for plaintiff in error.

Colquitt & Conyers, contra.

6. The special grounds of the motion for new trial, not covered by the foregoing rulings, are without substantial merit. The evidence authorized the verdict complained of, and, the verdict having the approval of the trial court, it will not be disturbed by this court.

Judgment affirmed.

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


text:
    15205.
    MAGRILL v. CITY OF ATLANTA.
    1. The unlawful obstruction of a public street in a municipality is a public nuisance.
    2. A license from a city to carry on the business of a newsdealer “at No. — Peachtree and Marietta Streets” gives no vested right to erect or maintain in either or both of such streets, for use in such business, any stand which obstructs or impairs the public use of such streets.
    3. Without express legislative authority, a municipality cannot grant to any person the right to erect or maintain in a public street a structure or device, such as a news stand, for his private or exclusive use.
    Decided March 6, 1924.
    Rehearing denied April 15, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. November 9, 1923.
    Application for certiorari was denied by the Supreme Court.

      W. Patti Carpenter, Morris Macks, for plaintiff in error.

      J. L. Mayson, J. M. Wood, contra.
   Luke, J.

Magrill was arraigned before the recorder of the City of Atlanta on a charge of “obstructing the street.” From the evidence before the recorder it appears that the alleged obstruction consisted of a large news stand, “about the size of two automobiles,” according to some of the witnesses, and not quite so large according to others. Though mounted on wheels, it was the defendant’s regular place of business, and was regularly kept stationed, day and night, at one point on Marietta street designed for use by the general public. There was no evidence of any disorder of any kind in connection with the maintenance of the news stand, the sole ground of complaint being that the defendant sought to convert, and was converting, to his permanent private use a part of the street dedicated to public use. The business had been carried on for years at the same place, the defendant being annually licensed by the City of Atlanta to conduct therein the business of a news stand. He introduced in evidence the license for the period in controversy, the same being a license for a “news stand at No. — Peachtree and Marietta Streets, which authorizes said business from July 1st, 1933, to June 30, 1933,” insisting that this license authorized him to keep and maintain the alleged obstruction in the street. At the conclusion of the evidence the recorder rendered the following judgment: “No. 1446. Coleman Magrill. Obstructing the Street. Feb. 1. The news-wagon standing on Marietta St., near Peachtree St., is hereby adjudged to be a nuisance; and it is ordered that said nuisance be abated within 34 hours.” By certiorari Magrill complained that he was arraigned for one offense and convicted of another, and that his conviction was without any evidence to support it. He excepts to the judgment of the superior court overruling the certiorari.

The unlawful obstruction of a public street being a nuisance, there is no merit in the contention that the defendant was charged with one offense and convicted of another. Hendricks v. Carter, 21 Ga. App. 527 (2) (94 S. E. 807), and citations. “If the nuisance complained of exists in a city having a population of twenty thousand or more, the police court of such city, whether known as mayor’s or recorder’s court or otherwise designated, shall have jurisdiction to hear and determine the question of the existence of such nuisance, and, if found to exist, to order its abatement,” etc. Civil Code (1910), § 5331.

The license introduced in evidence by the defendant does not support his contention that the city had licensed him to carry on the business of a newsdealer, much less erect or maintain an obstruction in a public street of the city. Ordinarily the words and blank, “at No. — Peachtree and Marietta Streets”' would be taken to refer, to some building at the intersection of the two streets named, the number of the building being for some reason not stated; but in no event can such words reasonably be so construed as to purport to authorize the licensee to select at his pleasure and permanently retain any part of either or both of the streets so referred to.

But since the City of Atlanta.has no express legislative authority to grant to any person such use of its public streets, the license would be void and without effect even if it could and should be construed as undertaking to license the defendant to do the very thing he was doing. By section 894 of the Civil Code (1910) it is declared that, “Without express legislative authority, a municipality cannot grant to any person the right to erect or maintain a structure or obstruction in a public street.” In the case of Laing v. Mayor &c. of Americus, 86 Ga. 756(1) (13 S. E. 107), the Supreme Court held: “Without express statutory authority, a municipal government cannot grant to any person the right to erect and maintain in a public street a structure, such as a permanent fish-box, for his private and exclusive use.” That decision is controlling here. The fact that the news stand was on wheels, and the fish-box was not, is immaterial. The two obstructions were alike violative of the law, because of their permanency, each taking a portion of a public street for the private and exclusive use of an individual. See also Mayor &c. of Savannah v. Markowitz, 155 Ga. 870 (118 S. E. 558).

The certiorari was properly overruled.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    15219.
    Jones v. The State.
   Broyles, C. J.

1. In a prosecution for possessing whisky it is not error to admit evidence that on other occasions, both before and after the date of the offense charged in the accusation, whisky was found in the place of business of the accused. Cole v. State, 120 Ga. 485 (48 S. E. 156); Lee v. State, 8 Ga. App. 413 (3) (69 S. E. 310); Holland v. State, 9 Ga. App. 831, 835 (72 S. E. 290); Reddick v. State, 15 Ga. App. 437 (2) (83 S. E. 675); Littleton v. State, 20 Ga. App. 746 (3) (93 S. E. 230).

Decided March 6, 1924.

Rehearing denied April 15, 1924.

Certiorari; from Fulton superior court — Judge Humphries. November 12, 1923.

Application for certiorari ivas denied by the Supreme Court.

Paul L. Lindsay, for plaintiff in error.

John A. Boylcin, solicitor-general, Roy Dorsey, solicitor, B. A. Stephens, contra.

2. The verdict was amply authorized, if not demanded, by the evidence, and none of the alleged errors committed upon the trial requires another hearing of the case. The judge of the superior court did not err in overruling- the certiorari.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


author: Bloodworth, J.

text:
    15218.
    Jones v. The State.
    Decided March 6, 1924.
    Rehearing denied April 15, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. November 12, 1923.
    Application fo£ certiorari was denied by the Supreme Court.

      Paul L. Lindsay, for plaintiff in error.

      John A. Boylcin, solicitor-general, Roy Dorsey, solicitor, B. A. Stephens, contra.
   Bloodworth, J.

There is no merit in any of the assignments of error in the petition for certiorari, and the judge of the superior court did not err in passing the following order: “Upon hearing the within certiorari the same is overruled, the conviction in the trial court affirmed, and a new trial denied.” See Jones v. State, ante, 7.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    14835.
    Autry v. Southern Railway Company et al.

   Jenkins, P. J.

Where a railway company in the construction or maintenance of its line of track creates or allows a deep and dangerous hole to form and for several years to continue on its property, immediately contiguous to its track and extending out into its property used as a street by a municipality, the company may be liable in damages to one riding in an automobile which was deflected by a drain into such hole; and the fact that the municipality may also be liable for such injury on account of a failure to keep the street in proper condition will not absolve the company from any liability to which it may be subject, arising from its original joint or sole creation or allowance and from its plainly alleged joint maintenance of such nuisance. Ga. Ry. & Electric Co. v. Tompkins, 138 Ga. 596, 600 (75 S. E. 664); City of Augusta v. Dozier, 126 Ga. 524 (55 S. E. 234); Mayor &c. of Dalton v. Wilson, 118 Ga. 100 (44 S. E. 830, 98 Am. St. R. 101); Hutson v. King, 95 Ga. 271, 276 (22 S. E. 616); Settler v. City of Atlanta, 66 Ga. 195, 196; Etheridge v. Cen. of Ga. Ry. Co., 122 Ga. 853 (50 S. E. 351, 69 L. R. A. 117); Burton v. Western & Atl. R. Co., 98 Ga. 783 (25 S. E. 736); Sinkovitz v. Peters Land Co., 5 Ga. App. 788 (64 S. E. 93); Harris v. Rome, 10 Ga. App. 409, 410 (73 S. E. 532). The recognized rule in this State that “a railroad company is not required to fence in or place guards along its road where there may be cuts or embankments, notwithstanding a public road may run parallel to such railroad” (King v. Cen. of Ga. Ry. Co., 107 Ga. 754, 758, 33 S. E. 839; Collier v. Ga. R., 76 Ga. 611), has no application to the facts alleged in the instant case, where it is in effect set forth not only that the railroad company was responsible or partly responsible for the creation and joint maintenance of the alleged nuisance adjacent to its line of track, but that the nuisance thus created and jointly maintained extended out into its property used by the municipality as a public street. The petition making both the municipality and the railroad company defendants, it was error for the court to dismiss the petition on general demurrer as to the railway company.

Decided March 13, 1924.

Rehearing denied June 16, 1924.

Action for damages; from Floyd superior court — Judge Wright. June 27, 1923.

Application for certiorari was made to the Supreme Court.

Porter & Mebane, for plaintiff.

Maddox, McCamy & McFarland, Hamilton & Hamilton, C. I. Carey, John Camp Havis, for defendants.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14838.
    Stanford v. Ætna Insurance Company.
   Jenkins, P. J.

The defendant insurance company issued a policy of lire insurance, which contained a provision to the effect that suit could not be filed thereon until after 60 days had elapsed from the giving of the proof of loss as required by the terms of the policy. Within less than 60 days from the rendition of such proof the insured filed a suit on the policy, alleging that notice of proof of loss had been given as required by the policy, but showing on its face that the suit was brought within •less than 60 days thereafter. The defendant filed a plea in abatement, setting up, as the sole reason why the suit could not be maintained, that the petition was brought prematurely. During the trial on the issue raised by the plea, the plaintiff amended his petition by striking the allegations setting up the furnishing of proofs of loss as required by the terms of the policy, and alleging in lieu thereof that the defendant company had made an absolute refusal to pay the claim. This amendment was allowed without objection or exception by the defendant. The defendant, without amending its plea in abatement, proceeded in the trial thereon, and under the evidence submitted, which consisted of the pleadings, the entries thereon, and certain provisions of the policy, a verdict was directed, sustaining the plea in abatement and dismissing the suit. To this the plaintiff excepts. Held:

Decided March 13, 1924.

Rehearing denied June 16, 1924.

Action on fire-insurance policy; from Montgomery superior court — Judge Grabam. May 10, 1923.

Application for certiorari was denied by the Supreme Court.

A. C. Saffold, W. J. Wallace, L. O. Underwood, for plaintiff.

M. B. Calhoun, Spalding, MacDougald & Sibley, for defendant.

An amendment to a plaintiff’s petition relates back to the commencement of the suit. Sanders v. Allen, 135 Ga. 173 (1) (68 S. E. 1102); Southern Ry. Co. v. Horine, 121 Ga. 386 (3) (49 S. E. 285). Accordingly, the petition as amended without objection or exception by the defendant was ’brought under the provisions of section 2490 of the Civil Code (1910); and notwithstanding that the court, in the absence of any motion to dismiss the plea in abatement, might possibly have been authorized to adjudicate the fact that the suit was brought within less than 60 days after proofs of loss had been furnished, this would not have authorized a dismissal of the action, which on its face was based upon another and different theory under the authority of the statute. The question here relates solely to the action of the court in determining the issue raised by the plea in abatement. The demurrers referred to in the briefs are not even contained in the record. Consequently, the references made in the brief of counsel for the defendant in error to the inadequacy of the petition as amended to show a waiver of proof of loss, and the references made in the briefs of counsel for the defendant in error to the sufficiency of the allegation as to an absolute refusal to pay by the defendant company, or by an agent of the company whose duty it was to determine and ascertain its liability, cannot now be considered. See also Bland v. Bird, 134 Ga. 74 (2 b) (67 S. E. 427).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    13747.
    Morgan County Bank v. Poullain.
   Luke, J.

1. Under the facts adduced upon the hearing of the motion to have a judge pro hae vice appointed, the trial judge did not err in overruling the motion and holding himself qualified to try the case.

2. The special demurrers to' the petition were properly overruled.

3. The main and controlling question in this case was certified to the Supreme Court, and that court held: “The lending of money on deposit for a customer and depositor by a bank in this State at his instance and as liis agent is not necessarily ultra vires. An agency to lend the money of one of its customers in his name and in his behalf in good faith and using ordinary diligence as an agent is ■within the range of the legitimate . business of a bank, unless expressly prohibited by its charter, and is an incidental power of the bank when deemed expedient to be exercised in the course of its business.” Eor a full discussion of this ruling, see 157 Ga. 423 (121 S. E. 813). Applying this ruling to the facts adduced upon the ti'ial, there is no merit in either the general grounds of the motion for a new trial or in grounds 22, 25, and 27.

Decided April 15, 1924.

Rehearing denied May 13, 1924.

Action for damages; from city court of Madison — -Judge Lambert. June 5, 1922.

Application for certiorari was denied by the Supreme Court.

N. L. Poullain sued the Morgan County Bank for damages in the sum of $3850, besides interest thereon. The petition alleged, in substance, that the plaintiff resided in New York and was a depositor and customer of the defendant; that in consideration of his deposits and as an inducement to him to carry deposits with the bank, the bank undertook from time to time to make loans for him from his funds on deposit, to take security for the loans, to collect the principal and interest, and to deposit to his credit on his deposit account the money so collected, and that this course of dealing had been going on for several years before the making of the loans hereinafter mentioned; that because of his nonresidence he knew practically nothing of the financial standing of individuals or of the value of property in Morgan county, and trusted the bank to make only safe and amply secured loans for him; that the bank agreed to do so, and in the making of the loans he was not consulted in advance, and generally he did not know or hear of them until long after they were made; that on February 5, 1919, the bank, -:out of his funds on deposit with it, lent to W. G-. Thompson and PL D. White $2,000, taking their promissory note for that amount, and taking as the only security for its payment a bond for title from Mrs. Lena F. Fitzsimmons to them, whereby she agreed to convey to them certain land on payment of their notes to her (described); that on January 30, 1920, the bank lent to the same persons $1,850 out of his funds on deposit, taking their note for that amount and interest, and took as the only security for its payment a second transfer of the bond for title described; that at the time of the making of these loans the borrowers were insolvent, that their purchase of the land was a mere speculation, and the banks knew these facts, and knew that the land would not have brought at a fair sale in open market the amount due Mrs. Fitzsimmons on the purchase price, and that the equity of Thompson and White in the land was worthless; that the bank failed to have the bond for title or the transfers thereon recorded until the plaintiff’s attorney caused them to be recorded on February 23, 1921, and, so far as any action on the part of the bank was concerned, third persons without notice could have acquired a valid lien or transfer superior to the lien and transfer created by the above-mentioned transfers of the bond for title; that the loans were made without previous consultation with the plaintiff and without his knowledge, and the security was worthless, and the bank knew or by the exercise of ordinary care and diligence could have known these facts; that at the time of the making of the loans the said Thompson was cashier of the bank and its chief managing officer, and the alter ego of the bank, and the making of loans, under the circumstances stated, was tantamount to the bank lending the money to itself, or to a trustee buying at his own sale, and constituted bad faith on the part of the bank; that at the time of the making of the second loan Thompson and White had defaulted in the payment of the first loan, and had paid only $146.66 on it, which the bank placed to plaintiff’s credit; that plaintiff did not know of this payment until long afterwards; that the bank knew all the facts recited; that with the exception of this payment of $146.66 nothing has been paid on the notes to plaintiff; that Thompson and White are unable to pay them, and the security taken for the loans is worthless; and by reason of the facts aforesaid the bank has injured and damaged plaintiff in the sum sued for.

4. A careful examination of the remaining special grounds of the motion for a new trial discloses that they are either too defective to be considered or are without substantial merit; the evidence authorized the verdict, and for no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodwortli, J., eoneur. ■

The bank demurred: (1) To paragraphs 4, 5, 6, and 7, on the ground that nowhere in the petition is it alleged through what officials the bank acted or made the alleged agreements and promises, and nowhere is it alleged that there was any adequate consideration for the alleged undertaking, the allegation as to the carrying of deposits not being a sufficient allegation of consideration or inducement, since the amount of the deposit or the period is nowhere stated; (2) to paragraph 3 because it sets up no facts on which a recovery can be based, and the allegation that the plaintiff was a depositor and customer carrying large deposits is too vague to show adequate consideration for the alleged undertaking; (3) to paragraph 9 because it sets up no facts on which a recovery can be based.

The verdict was in favor of the plaintiff, for the principal sum sued for and interest.

The first special ground of the motion for a new trial is as follows: “When said case was called for trial movant objected to the judge of the city court presiding at the trial of said case: (1) because said judge, Hon. E. R. Lambert, was disqualified, for the reason, as movant contends, that he had been counsel for plaintiff in this case, had advised him as to the subject-matter of this case, and received a fee therefor; (2) because said judge . . was disqualified for the reason, as movant contends, that he was associated with A. G. Foster, Esq., one of the counsel for plaintiffs, and had been so associated since he . . became judge of said court, occupying offices with said Foster, who was then at the trial so associated and so occupying offices. The court overruled the objection and held that he was qualified to try said case; to which ruling defendant in the court below excepted, and now excepts,” etc. From a note to this ground it appears that evidence consisting of a statement of the judge himself was submitted in connection with the motion referred to therein. This statement was as follows: “ Some time prior to 1921 the plaintiff in this case . . employed me as attorney to look through the collateral in his box in the Morgan County Bank and advise him in connection with the same.' I secured his box from the bank and went through his papers, and found deposited therein a bond for title given by Mrs. Lena Fitzsimmons to H. D. White and W. G. Thompson, and transferred by the latter to N. L. Poullain as security on two notes. I advised Mr. Poullain that the bond for title should be recorded, and I also advised him what I thought the real estate described in the bond for title was worth. I had the bond recorded, placed all the papers back in the box, and handed it to his sister. . . I sent Mr. Poullain a bill for my services, and he paid me. Later he sought to employ me to collect the money for him, — that is, on the note and bond for title. I advised him that I would represent him, provided he would allow me to bring suit in the superior court, which met twice a year, while the city Court met four times a year. He then wrote me that he would rather bring the suit in the city court, and did not employ me. After I became judge I did not use the office provided for me by the county in the court-house. I used an office in the Foster Building; it adjoined Mr. A. G. Foster’s office, with a connecting door between. "We used offices interchangeably, but I paid my own rent. We made two loans together and were in partnership in those two loans; we may make other loans in partnership, but we have no connection now. I do not remember exactly, but may have recommended to Mr. Poullain that he employ Mr. Foster. Since the fire in the Foster Building I moved to the court-house office provided for the city-court judge by the county. It adjoins the sheriff’s office, with a connecting door between. Mr. Foster came with me. Eeally he occupies my office, while I use to some extent the sheriff’s office, where I have a typewriter and work. We use both offices interchangeably. Mr. Foster pays no rent.”

Ground 33 of the motion for a new trial complains of the refusal of the court to give in charge to the jury the provisions of the Civil Code (1910), § 3366, and of the banking act of 1919, as to the powers of banking corporations, and to instruct the jury that “the Morgan County Bank, being a State bank incorporated under the laws of this State, has no power to act as any person’s agent in the lending of that person’s money, and if, as alleged by plaintiff, W. G. Thompson, cashier of said bank, acted as agent of the plaintiff in lending plaintiff’s money, he acted beyond the scope of his authority as an officer of said bank, and such acts can not bind the bank or create any liability on the part of the bank to plaintiff.”

Ground 35 was as follows: “The charge as a whole was error because throughout it assumed that the authority .of a cashier is unlimited, and that to act in a fiduciary capacity, to undertake trusts, to handle another person’s money, lending it, investing it, etc., are all Tn the usual and ordinary course of a bank’s business.’ If a State bank has any authority of law to act as trustee for another or as another’s agent in handling another’s funds, it cannot be said that so doing is in the usual and ordinary course of a bank’s business. On the contrary, it is so unusual that the question has never been passed upon by our courts of final resort, and the court below should have so held as a matter of law, or should have submitted the question to the jury under appropriate instructions. Nowhere in the charge does the court do so, and error is assigned upon this omission.”

Ground 27 was to the effect that the court should have charged the jury that the Morgan County Bank, being a State bank under the act of 1893, and not a trust company, was not authorized to act as trustee or in any fiduciary capacity; that it could not so act unless it qualified itself to do so under the act of 1920, which enables State banks to become clothed with the powers and subject to the liabilities of trust companies.

B. H. George, Anderson & Wood, for plaintiff in error.

Johnson & Foster, contra.


text:
    14191, 14229.
    Ellis v. Southern Express Company; and vice versa.

    Decided April 15, 1924.
    Complaint for damages; from Bibb superior court — Judge M. D. Jones. December 19, 1922.

      B. J. Fowler, for plaintiff.

      Jones, Park & Johnston, for defendant.
   Luke, J.

1. In the ease of Ellis v. Southern Express Co., 27 Ga. App. 738 (a) (110 S. E. 43), which was a suit between the same parties and based upon the same cause of action as the suit now under review, this court held that the trial court had no jurisdiction of the case. That decision, whether right or wrong, is the law of the case, and is res judicata as to that question. See Ellis v. Southern Express Co. (this case), 157 Ga. 629 (122 S. E. 48).

2. Under the above ruling the trial court erred in overruling the plea to the jurisdiction.

Judgment on cross-hill of exceptions reversed; main hill dismissed.

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


author: Broyles, C. J. Broyles, 0. J.

text:
    14331.
    NEW JERSEY INSURANCE CO. v. ROWELL.
    Decided April 15, 1924.
    Rehearing denied May 14, 1924.
    Action on fire-insurance policy; from Colquitt superior court— Judge W. E. Tilomas. January 17, 1923.
    Application for certiorari was denied by the Supreme Court.

      Smith, Hammond & Smith, Kline & Moore, for plaintiff in error. Waldo BeLoache, B. 8. Boddenbery Jr., contra.
   Broyles, C. J.

1. Where a policy of fire insurance, taken out by the tenant and lessee of a building, insured the building for a certain sum, and a stock of goods in the building for another certain sum, the consideration of the policy being a premium payable in a gross sum, and where the policy of insurance contained a clause making any loss or damage to the building payable to a named third person (the owner of the building), “as his interest may appear,” and where both the building and the stock of goods were subsequently damaged by fire, and the insured brought suit in his own name to recover the amount of both the damage to the stock of goods and the damage to the building, the petition was not subject to general demurrer for the reason that it failed to set forth that the recovery for the damage to the building was sought for the use and benefit of the person named in the aforesaid loss-payable clause.

(a) The above ruling was made by the Supreme Court in answer to a question certified to it by this court. For a full discussion of this question see New Jersey Insurance Co. v. Rowell, 157 Ga. 300 (121 S. E. 414).

2. The special demurrers to the petition are without substantial merit, and the court properly overruled them.

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.

ON MOTION FOR REHEARING.

Broyles, 0. J.

The plaintiff in error, in the motion for a rehearing, contends that the Supreme Court, in its answer to a question in this case, certified by this court, “did not dispose of all of the questions raised by the general demurrer” to the petition, and that the questions not so disposed of 'were not decided by this court as they should have been. This contention is without merit, as the Supreme Court in its answer distinctly and broadly ruled that the petition was not subject to general demurrer. The headnote of its answer was as follows: “The petition described in the question propounded by the Court of Appeals was not subject to general demurrer.”

Motion denied.

Luke and Bloodworth, JJ., concur.


text:
    15253.
    BURKHALTER v. DURRENCE.
    The alleged defects in the mule sold by the plaintiff to the defendant did not, under the evidence, constitute a defense to the purchase-money note sued on, or entitle the defendant to a reduction in the amount of the purchase-money.
    Decided April 15, 1924.
    Complaint; from city court of Claxton — Judge Elmore. November 19, 1923.
    The action was upon a note for $300 principal, the price of a mule. The defendant, by his plea as amended, set up that the mule was sold and bought to do the ordinary work, of a mule, but was not suited for that purpose, that the mule was unmanageable, wild, and crazy, and “is sickly, being subject to colic, and has been crippled a great portion of the time, and is now crippled,” that these defects existed when the mule was bought, and were latent and unknown to the defendant, and that the mule “was not worth more than $150.” The trial resulted in a verdict for.the plaintiff for $225 principal, besides interest and attorney’s fees sued for; and he made a motion for a new trial, contending that the verdict for less than the amount of the note was contrary to law and the evidence.

      W. T. Burlchalter, for plaintiff.

      P. M. Anderson, for defendant.
   Broyles, C. J.

The defendant bought a mule from the plaintiff, but at that time gave no note for it. After keeping and Avorking the animal for two or three months he sent it back to the plaintiff, AAdth Avord that he did not want it. The plaintiff immediately returned the mule to him, and subsequently upon the same day saAv him, and, according to the testimony of the defendant, said to him: “I Avill knock off $25 if you will take her and get her in good shape; and if she don’t' suit you, bring her back and Ave Avill sell her and go fifty-fifty on the loss.” The defendant then agreed to keep the mule and signed a note for $300, — the note sued upon. The undisputed eAddence further sIioavs that after the defendant signed the note he kept and Avorked the mule for two years before he made any complaint to the plaintiff, and that he never returned the mule to the plaintiff or requested him to sell it in accordance with their alleged agreement. The jury returned a verdict in favor of the plaintiff for $225 as principal, and for interest and attorney’s fees provided for in the note; and the plaintiff made a motion for a new trial, which was overruled, and he excepted. Conceding (but not deciding) that the testimony of the defendant in regard to the alleged oral agreement, as quoted above, was admissible, the evidence demanded a verdict in favor of the plaintiff for the full amount sued for, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    15258.
    Byas v. Hammond.
    Decided April 15, 1924.
    Action for damages; from Bibb superior court — Judge Malcolm D. Jones. November 19, 1923.

      J. D. Hughes, for plaintiff.

      Boy W. Moore, P. 0. Holliday, for defendant.
   Broyles, C. J.

The plaintiff having failed to prove her case as laid, the court did not err in granting a nonsuit on motion of the defendant.

Judgment affirmed.

LuJce and Bloodworth, JJ., concur.


text:
    15260.
    WALKER v. THE STATE.
    A conviction of the manufacture of intoxicating liquor was no't authorized by the evidence.
    Decided April 15, 1924.
    Indictment for manufacture of liquor; from Gwinnett superior court — Judge Russell. December 1, 1923.
    The sheriff testified: “We were called to go about five miles out where a still was reported. When we got to within 150 yards of the still two men came walking out with a lantern. We stopped and watched them, and then went and tore up a still. We found a still and some still slop. The still was warm and it appeared that they had just made a run. We found several barrels of beer. The coals under the furnace were still warm. There were some buckets, the cap, and several other things. It looked like they had made a run in the early part of the night. After we tore up the still we followed the tracks made by the men, and they led up to the house of Claud Walker [the defendant]. We went up by the barn to the house, and McDaniel and Walker were in bed. They finally opened the door. Their clothes had mud on them and it looked like they had still slop on them. . . It was between a quarter and a half mile from the place where we first saw the men with the lantern. . . The still was warm and there were hot coals there. . . I don’t swear that a run had been made there. The still was left in the furnace ready to run. When we first saw these men they were not over 50 feet from where we found the still. They were in the path coming toward us, but swerved off to the right.” There was additional testimony by this witness as to the locality, the path leading to the' defendant’s house, etc. Testimony to the same effect was given by a deputy sheriff, who stated that he was with the sheriff when the still was discovered, that they found “the whole still there,” and that “there were two barrels of beer sunk into the ground.” The defendant, in his statement at the trial and by his witnesses, sought to establish an alibi. In rebuttal it was testified that a five-gallon oil can, with the top cut out, was found when the still was discovered, and that the top of the can was found at the defendant’s house.

      W. L. Nix, for plaintiff in error.

      Pemberton Cooley, solicitor-general, contra.
   Broyles, C. J.

The defendant was convicted of manufacturing whisky. The evidence failed to establish that any whisky had been made at the distillery in question, or that the beer found there by the arresting officers was intoxicating. The verdict, therefore, was unauthorized, and the overruling of the motion for a new trial was error. If the conviction had been for an attempt to manufacture whisky, another question would have-been presented.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    15259.
    McDANIEL v. THE STATE.
    A conviction of the manufacture of intoxicating liquor was not authorized by the evidence.
    Decided April 15, 1924.
    Indictment for manufacture of liquor; from Gwinnett superior court — Judge Russell. December 1, 1933.
    McDaniel and Walker were indicted and tried jointly, and the facts are reported in Walker’s case, ante, 18.

      IF. L. Nix, for plaintiff in error.

      Pemberton Cooley, solicitor-general, contra.
   Broyles, C. J.

' The defendant was convicted of manufacturing whisky. The evidence failed to establish that any whisky had been made at the distillery in question, or that the beer found there by the arresting officers was intoxicating. The verdict, therefore, was unauthorized, and the overruling of the motion for a new trial was error. If the conviction had been for an attempt to manufacture whisky, another question would have been presented.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    15261.
    NAIL, administratrix, v. POPWELL.
    Jurisdiction to pass an order to perfect service on the defendant was wanting at the third term after the filing of the suit, and the order then passed for that purpose was a nullity.
    Decided April 15, 1924.
    Complaint; from city court of Jesup — Judge Clark. November 5, 1923.

      Conyers & Wilcox, Oscar Nail, for plaintiff.

      Farr & Powell, for defendant.
   Luke, J.

On November 18, 1922, the plaintiff filed in the city court of Jesup a suit on a promissory note, which lacked but three days of being barred by the statute of limitations. The terms of that court are quarterly, commencing on the fourth Mondays in January, April, July, and October. To the petition as filed the clerk duly annexed a process, returnable to the following January term, but inadvertently misplaced the papers and failed to docket the case and failed to hand a copy of the petition and process to the sheriff for service on the defendant. Eelying upon the clerk and the sheriff to.perform their respective official duties, neither the plaintiff nor her counsel made any inspection of the record or other investigation touching service of the petition and process until the July term, which was the third term of such suit. By an ex parte motion the plaintiff’s counsel then -obtained an order to perfect service on the defendant for the October term, 1923, declaring that to be the appearance term of the case. At the October term tbe defendant appeared specially and moved to dismiss tbe plaintiff’s proceeding, on tbe ground that the ex parte order was taken after the suit had become functus officio and after the note sued on had become barred by the statute of limitations, the movant contending that the court was without authority of law at the July term to revive either the suit or the note sued on. The court sustained the defendant’s motion, and the plaintiff excepted.

The ruling complained of was not erroneous.

(а) Generally, where there is neither service nor entry or waiver of service at the appearance term of a case, the plaintiff must then and there move for an order to perfect service, or else he will be chargeable with laches, and the writ which he caused to issue will become abortive, and the court will lose jurisdiction to have service perfected. Cox v. Strickland, 120 Ga. 104 (7-10) (47 S. E. 912, 1 Ann. Cas. 870).

(б) Exceptions to this general rule exist where the defendant is temporarily absent from the territorial jurisdiction of the court, thereby rendering service upon him impossible, as in Dobbins v. Jenkins, 51 Ga. 203, and Sims v. Sims, 135 Ga. 439 (69 S. E. 545); also where there are joint defendants and service is perfected on one or more of them, as in White v. Hart, 35 Ga. 270; Stanford v. Bradford, 45 Ga. 97, and Crayton v. Fox, 106 Ga. 853 (33 S. E. 42), and where the plaintiff’s inaction is due to an express representation by the court or its officers that service has been duly perfected, as in Allen v. Mutual Loan & Banking Co., 86 Ga. 74 (12 S. E. 265), and McLendon v. Ward-Truitt Co., 19 Ga. App. 495 (91 S. E. 1000), and possibly in other cases where, though the facts are dissimilar, the principle is the same.

(e) But where, as in the instant case, there is only one de- ' fendant, and the lack of .service is in no way chargeable to him, and at the appearance term there is neither service nor entry nor waiver of service, and no express official representation that service has been perfected, and the plaintiff remains inactive until the third term of the ease, the court is then without jurisdiction to cause service to be perfected, and an order passed for that purpose is a mere nullity. McLendon v. Hernando Phosphate Co., 100 Ga. 219 (2) (28 S. E. 152); Nicholas v. British America Assur. Co., 109 Ga. 621 (34 S. E. 1004); Chapman v. Central of Georgia Ry. Co., 20 Ga. App. 251 (92 S. E. 1025).

Judgment affirmed.

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