text:
    14438.
    Murrow v. Walden.
    Decided November 15, 1923.
    Complaint; from city court of Tifton—Judge J. H. Price. March 5, 1923.
    The motion to dismiss the writ of error was on the ground that the words “accepted” and “accepts” appear in the bill of exceptions where the words “excepted” and “excepts” should appear. They are followed by assignments of error in the usual form.
    The action was upon promissory notes signed-by the defendants, on which there was a credit of $25. J. p>. Murrow, one of the defendants, filed an answer, denying the material allegations of the plaintiff’s petition, and alleging: The consideration of “said note” is one Ford automobile, sold to defendant by the plaintiff’s agent and guaranteed to be in good condition, which from the outside appeared to be as guaranteed. Defendant found, after the automobile W9,s taken into possession by him^ that it was worthless^ and lie had to spend a good deal of money on repairs; its radiator was in bad condition, leaking, the carburetor was out of order, and the automobile was practically worthless to him. After defendant found out the condition of the automobile he offered to return it to the plaintiff, and the plaintiff refused to accept it. Defendant paid plaintiff $25 on the automobile, and feels that this amount was all that the automobile was worth. By subsequent amendment to the petition the plaintiff alleged: The notes sued upon were given for the price of an automobile which was purchased by and 'delivered to W. A. Myers (one of the defendants) on June 22, 1921, and which was retained by him until the date of the notes sued on, —August 1, 1922,—and the plaintiff was preparing to repossess himself of the car, and made this known to W. A. Myers, when Myers obtained the execution of the notes. The automobile was not sold to Murrow, but he signed the notes for the purpose of preventing the car from being taken from Myers by the plaintiff; and upon execution of these notes the car was left in the possession of Myers. On allowance of this amendment the plaintiff made an oral motion to strike Murrow’s answer, and the court passed an order as follows: “Unless the answer is amended within five days, setting up a legal defense, the above and foregoing answer is stricken, and judgment is rendered in favor of the plaintiff for full amount sued for, with interest.” No amendment was filed by Murrow, and, after the expiration of the time allowed in the foregoing order, the court rendered final judgment against him, reciting therein that, “the defendant having failed to file any amendment,” the preceding judgment “became operative as a judgment by default.” The bill of exceptions assigns error on each of these judgments.
   Bloodworth, J.

1. The motion to dismiss the bill of exceptions is denied.

2. Under the facts of this case the judge did not err either in striking the plea or in thereafter rendering a judgment in favor of the plaintiff.

3. Not being fully convinced that the bill of exceptions in this case was brought to this court for delay only, the request of the defendant in error that ten per cent, damages be assessed against plaintiff in error ' is denied.

Judgment affirmed.

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

W. B. Bennel, J. B. Murrow, for plaintiff in error, cited:

21 Ga. App. 717; 20 Ga. App. 740.

John Henry Poole, contra, cited:

108 Ga. 12-14; 112 Ga. 662; 14 Ga. App. 172 (2); 71 Ga. 470; 134 Ga. 674 (2 a), and cit.; 119 Ga. 837 (7); Civil Code (1910), §§ 4135, 4140; 77 Ga. 701 (3); 101 Ga. 39(1). As to damages for bringing the case to this court: 23 Ga. App. 273 (2); 20 Ga. App. 205; Id. 97 (5); 21 Ga. App. 100; 24 Ga. App. 244 (2), 248; 25 Ga. App. 721 (3); 27 Ga. App. 365; 2 Ga. App. 62; 6 Ga. App. 189; 7 Ga. App. 142; 8 Ga. App. 34; 18 Ga. App. 649; 19 Ga. App. 809, 811; 91 Ga. 192; 109 Ga. 172 (5).


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    14774.
    Dixon et al. v. Sol Loeb Company.
   Broyles, C. J.

1. “The existence of a copartnership when once established is presumed, as to third persons, to continue until notice of dissolution has been given that the copartnership no longer exists. Civil Code (1910), §§ 3180, 3179, 3157; Pursley v. Ramsey, 31 Ga. 403, 409; Fleshman v. Collier, 47 Ga. 253, 256, 257; Reliance Fertilizer Co. v. Perry, 23 Ga. App. 580, 583 (99 S. E. 44).” Brady v. Phillips Mule Co., 27 Ga. App. 444 (3) (108 S. E. 809).

2. “The dissolution of a partnership by the retiring of an ostensible partner must be made known to creditors and to the world. The word ‘creditors,’ as thus employed in the statute (Civil Code [of 1895], § 2634), is not limited to persons who were creditors at the time of the dissolution. A person who had previously sold goods and ^iven credit to the firm during its continuance was within its meaning. Actual notice must be given to creditors.” Bush v. McCarty Co., 127 Ga. 308 (1-3) (56 S. E. 430, 9 Ann. Cas. 240).

3. “Where there is independent prima facie proof of a partnership, the declarations of either one of the alleged partners, written -or spoken, are admissible in corroboration. Ham v. Brown, . . [2 Ga. App.] 71, 58 S. E. 316; Jones v. Harrell, 110 Ga. 380, 35 S. E. 690.” Davidson v. Waxelbaum, 2 Ga. App. 432 (2) (58 S. E. 688).

4. The above-stated rulings are applicable to the instant case, where two sisters, Mary Lizzie Dixon and Pattie Dixon, as partners, began a retail business under the firm name of M. L. & Pattie Dixon, and where some three or four months afterwards the firm name was changed to M. L. Dixon Company, and where, when M. L. Dixon Company was sued by a creditor, Pattie Dixon pleaded that when the firm name was changed she retired from the partnership and' had no further interest in the business.

5. Under the foregoing rulings and the facts of the instant case, the testimony of the witnesses, Land, Reeves, Askew, and Smith, that, subsequent to the change of the firm’s name, Mary Lizzie Dixon told them that the firm name had been changed merely for the purpose of making it shorter, and that the partnership remained unchanged, was admissible. Moreover, even if the admission of this evidence, over her' objections, were error, it does not require another trial of the case, since substantially the same testimony was given by another witness,—Jones (see page 92 of the record),—-and was admitted without objection. Daughtry v. Savannah & Statesboro Ry. Co., 1 Ga. App. 393 (3) (58 S. E. 230).

6. The 4th ground of the motion for a new trial, complaining of the admission of certain evidence, when viewed in the light of the note of the trial judge, is without merit.

7. The admission of evidence as complained of in the 5th, 6th, and 7th grounds of the motion for a new trial was not error for any reason assigned.

8. “If a person holds himself out, or permits himself to be held out, to the world as a partner in a business, he will be bound to one who contracts with the purported partnership on the faith of such representations, whether in fact he has any interest therein or not.” American Cotton College v. Atlanta Newspaper Union, 138 Ga. 147, 148 (4) [74 S. E. 1084). Under this ruling the complaint that the testimony set forth in the 9th and 10th g'rounds of the motion for a new trial was erroneously admitted in evidence is without merit.

Decided November 19, 1923.

Complaint; from city court of Greenville—Judge McGraw. May 31, 1933.

Application for certiorari was denied by the Supreme Court.

N. F. Culpepper, for plaintiffs in error.

J. F. Hatchelt, Jones & Jones, contra.

9. “As a general rule, the testimony of persons who have knowledge of the facts from which the books are made xip is as to those facts primary evidence, and the books themselves are admissible only by way of corroboration.” Harper v. Hammond, 13 Ga. App. 238 (3) (79 S. E. 44); Smith v. Southern Spring Bed Co., 16 Ga. App. 449 (1) (85 S. E. 612). Under this ruling the eoui't did not err in admitting in evidence the testimony complained of in the 11th, 12th, 13th, 14th, 15th, 16th, and 17th grounds of the motion for a new trial.

10. There is no merit in the 18th ground of the motion for a new trial, complaining that the court erred in admitting in evidence the books of* account kept by the plaintiff company. These books were admissible as corroborating evidence. Bush v. Fourcher, 3 Ga. App. 43 (59 S. E. 459); May v. McCarty, 11 Ga. App. 454, 455 (2) (75 S. E. 672).

11. The admission in evidence of the documentaiy evidence set out in the 19th ground of the motion for a new trial was not error for any reason assigned.

12. Several grounds of the motion for a new trial complain that the court erred in refusing to give certain requested instructions to the jury. These grounds cannot be considered, however, since it does not affirmatively appear from the grounds that the requests were tendered to the court before the jury had retired to consider their verdict. A statement in the grounds that the requests were tendered “in due time” is a mere conclusion of the movant and does not come up to the rule. Keese v. Mize, 27 Ga. App. 666 (4) (110 S. E. 417); Jones v. Western and Atlantic Railroad Co., 23 Ga. App. 725 (3) (99 S. E. 388).

13. Under the particular facts of the case the court did not err in refusing to rule out the evidence set forth in the 20th ground of the motion for a new trial. This evidence tended to throw light on the issues involved in the case, and was not inadmissible for the reason assigned.

14. The several excerpts from the charge of the court, complained of in the remaining grounds of the motion for a xxew trial, when considered in the light of the entire charge and the particular facts of the ease, do not require a reversal of the judgment of the court below.

15. The verdict was authorized by the evidence, and the overruling of the motion for a new trial was not error for any reason assigned.

Judgment affirmed.

Lulce and Bloodworth, JJ., oonour.


author: Luke, J.

text:
    14844.
    HERRINGTON v. THE STATE.
    A conviction of involuntary manslaughter in the commission of an unlawful act was authorized by the evidence, from which it appeared that a pedestrian was struck and killed by an automobile driven by the defendant when the defendant was intoxicated and was driving at an unlawful rate of speed on a public road.
    The court did not err in the instructions complained of as to the effect of evidence of the defendant’s good character.
    There is no merit in the exceptions to the charge of the court on involuntary manslaughter.
    The charge of the court on intoxication as affecting the question as to guilt was not subject to the exceptions taken.
    Eailure to charge as to when involuntary manslaughter is punishable as a misdemeanor was not error.
    It was not error to fail to charge that “a person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, where it satisfactorily appears that there was no evil design or intention or culpable neglect.”
    Decided November 15, 1923.
    Rehearing denied December 5, 1923.
    Indictment for involuntary manslaughter; from Bibb superior court—Judge Mathews. June 1, 1923.
    Application for certiorari was denied by the Supreme Court.

      John R. Cooper, W. 0. Cooper Jr., for plaintiff in error.

      Charles II. Garrett, solicitor-general, contra.
   Luke, J.

The defendant was tried upon an indictment charging murder, and was convicted of involuntary manslaughter in the commission of an unlawful act. In his motion for a new trial, which was overruled, he complains that the evidence did not authorize the verdict, and complains of several excerpts from the charge of the court, and of the court’s failure to charge certain principles of law, which he says were applicable and should have been charged without request.

1. The jury were amply authorized by the evidence to find as a matter of fact that the defendant, while in an intoxicated condition, was driving an automobile in violation of law, upon the public road, and that while thus intoxicated and driving his automobile at a rate of speed beyond that permitted by law, he struck and killed a pedestrian on the highway. The evidence fully authorized the defendant’s conviction.

2. The defendant insists that the court erred in charging the jury as follows: “There is evidence in the case as to the good character of the defendant. Any evidence offered for the purpose of establishing good character of the defendant ought to be considered by the jury, and if the jury believes the evidence as to good character establishes his good character, then that is a substantive fact in the case that ought to be considered, as bearing upon the question as to whether ori not the defendant is guilty,—as raising the question of the improbability of his guilt. Even if all-the other evidence in the case should show beyond a reasonable doubt the defendant is guilty, yet if, in connection with the other evidence, the evidence as to good character raises a reasonable doubt as to his guilt, when considered in connection with all the other evidence, and that reasonable doubt is thus raised in the mind of the jury, it would be the duty of the jury to give him the benefit of the doubt and acquit him. However, if upon considering all the evidence, including that of his good character, leaves no reasonable doubt when you consider all the evidence, it would be your duty to convict him notwithstanding the jxroof of good character; in other words, the question, after all, is whether the defendant is guilty, and bearing upon that question you would consider the evidence as to his good character, and as a result of a consideration of that entire evidence leaves no reasonable doubt, then you would convict him, but if it did leave a reasonable doubt you would not convict him.” We do not agree with the defendant's contention. See Hill v. State, 18 Ga. App. 259 (1 a, b) (89 S. E. 351), and citations.

(a) Because the court erred in charging as follows: “I give you in charge, however, the law of involuntary manslaughter. Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act, provided that where such involuntary killing shall happen in the commission of an unlawful act which in its consequences naturally tends to destroy the life of a human being, it shall be deemed and adjudged to be murder.” The special exception to this charge is that there was no involuntary manslaughter in the commission of an unlawful act in the case. This exception is likewise without merit.

(b) Because the court erred in charging the jury as follows: “I charge you, if this defendant driving his car ran against Cofer, if he was in an intoxicated condition, he is guilty of the offense of involuntary manslaughter at least, in the commission of an unlawful act; that is, if driving his car in an intoxicated condition upon the public highway, by reason of his intoxicated condition he ran against Cofer and killed him, he is guilty of involuntary manslaughter in the commission of an unlawful act, if he did not intend to kill him, because involuntary manslaughter means unintentional killing, but an unintentional killing where the person killing is in the commission of an unlawful act; and if it is committed by reason of the commission of an unlawful act, the killing, though unintentional, is a felony punishable by confinement in the penitentiary for not less than one nor more than three years.” The exception to this excerpt from the charge is without merit.

(c) Because the court erred in charging the jury as follows: “The State contends also that this defendant was guilty of involuntary manslaughter in the commission of an unlawful act in that he was driving his automobile at a rate of speed beyond what was allowed by the law. Now if this defendant was driving an automobile beyond thirty miles per hour, which the law prescribes as a maximum speed of an automobile driven upon a public highway, and if, by reason of this excessive and unlawful speed, the deceased, Cofer, was killed, and the defendant was the man who was driving the automobile, then he would be guilty of involuntary manslaughter in the commission of an unlawful act; and, as I have already told you, involuntary manslaughter in the commission of an unlawful act is a felony.” The exception to this excerpt from the charge is without merit.

(cl) Because the court erred in charging the jury as follows: “I charge you that voluntary drunkenness is no excuse for crime. If, by his want of ability growing out of that fact, and want of ability to manage and drive the car, he lost control of the car on account of intoxication, that would not be a case of murder; but you look to the condition of his mind at the time, whether the condition of his mind was a reckless disregard of the life of a human being. If he knowingly ran this car against the deceased with a reckless disregard of the life of the deceased, although he was drunk, if he knowingly and intentionally did so, he would be guilty of murder. Of course, if by reason of the excessive speed he was driving he lost control of his car and unintentionally ran against the deceased, he would not be guilty of murder, but he would be guilty of the offense of involuntary manslaughter in the commission of an unlawful act.” The defendant excepts to- this excerpt from the charge (1) “because drunkenness may excuse a person for a crime,—that is, if a man is so drunk as to destroy an intention to commit a crime,” and (2) because if the defendant lost control of his car and unintentionally ran against the deceased, he would not be guilty of any offense. This exception is without merit.

(e) Because the court erred in charging the jury as follows: “The law presumes that an intoxicated man is able to think and form purposes and intentions; and although he may form purposes and intentions he would not form if he was sober, he is just as responsible for the purposes and intentions he acts upon as though he was sober.” The special exception is that the court assumed that the defendant was intoxicated. When the charge of the court is read, this exception is utterly without merit. The judge did not assume or intimate to the jury that in his opinion intoxication was proved. He charged the law correctly.

(/) Because the court erred in charging as follows: “If you have a reasonable doubt, however, as to his being guilty of murder, you would consider whether or not he is guilty of the offense of involuntary manslaughter in the commission of an unlawful act; and if you should find him guilty of that offense, the form of your verdict would be, 'We, the jury, find the defendant guilty of the offense of involuntary manslaughter in the commission of an unlawful act/ and you would fix a punishment by adding to your verdict, 'and we fix his punishment at not less than so many years (not less than one), and not more than so many years (not more than three), or any number between one and three, as a maximum and minimum/ ” The defendant excepts to this excerpt because the court did not charge the jury on the misdemeanor part of involuntary manslaughter. The charge was proper and adjusted to the issues and the evidence in the case.

(g) Because the court erred in omitting to charge as follows: “Involuntary manslaughter in the commission or performance of a lawful act, where there has not been observed necessary discretion and caution, shall be punished for a misdemeanor.” In view of the entire charge and the evidence in the case, this exception is without merit.

(h) Because the court “failed to charge the jury Section 40 of the Criminal Code . . : e A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, . . where it satisfactorily appears there was no evil design or intention or culpable neglect.’ ” This exception is likewise without merit.

3. The evidence authorized the defendant’s conviction and the charge of the court was full and fair, and, if subject to any criticism, it would be that issues were presented more favorably to the defendant than to the State. In fact, the evidence would have sustained a verdict finding the defendant guilty of murder. The court properly overruled the motion for a new trial.

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    14887.
    Hall v. The State.
    Decided November 15, 1923.
    Accusation of drunkenness on highway; from city court of Thomasville—Judge Hammond. July 5, 1923.

      D. Boy Hay, for plaintiff in error.

      H. J. MacIntyre, solicitor, contra.
   Bloodwortii, J.

This court cannot say, as a matter of law, that there is no evidence to support the verdict in this case; and, as it has the approval of the trial judge and no error of. law was committed, the judgment must be

Affirmed.

Broyles, O. J., and Lulce, J., concur.


author: Beoxles, O. J.

text:
    14910.
    Chance v. The State.
    Decided November 15, 1923.
    Accusation of carrying pistol without license; from city court of Metter—Judge Lanier. July 3, 1923.

      Charles Emory Smith, for plaintiff in error.

      C. W. Turner,'solicitor, contra.
   Beoxles, O. J.

The verdict was authorized by the evidence, and the exception to the charge of the court was without merit. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    14913.
    Lucas v. The State.
    Decided November 15, 1923.
    Conviction of larceny of cattle; from Tattnall superior court-judge Sheppard. June 30, 1923.

      W. T. Burlchalter, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
   Bloodwortii, J.

The verdict is without evidence to support it, and the judge erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    14916.
    Ross v. The State.
    Decided November 15, 1923.
    Conviction of larceny of cotton; from Houston superior court— Judge Malcolm D. Jones. June 36, 1923.

      John B. Cooper, W. 0. Cooper Jr., for plaintiff in error.

      Charles II. Garrett, solicitor-general, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and there is no merit in any of the special grounds of the motion for a new trial.

Judgment affirmed.

Luke and Bloodioorlh, JJ., concur.


text:
    14919.
    Eason v. The State.
    Decided November 15, 1923.
    Accusation of possession of.liquor; from city court of Eloyd county—Judge Nunnally. July 16, 1923..

      C. I. Carey, for plaintiff in error.

      James Maddox, solicitor, contra.
   Luke, J.

The defendant complains that her conviction was not authorized by the evidence. The evidence was conflicting, but, the jury having believed the evidence for the State, showing her guilt, and the trial judge having approved the verdict, the judgment overruling the motion for a new trial is

Affvrmed.

Broyles, O. J., and Bloodioorlh, J., concur.


author: Bloodwortií, J.

text:
    14920.
    WILLIAMS v. THE STATE.
    1. Tlie presiding judge having refused to approve grounds 1 and 2 of the amendment to the motion for a new trial, this court cannot consider them.
    2. In organizing a jury in a criminal case the law does not require that the oath set out in § 860 of the Renal Code of 1910 be administered to the jurors “one at a time.” Where this oath was administered to all the jurors “at one and the same time,” and they “were afterwards put upon defendant one at a time and voir dire (questions) propounded one at a time,” the law was complied with.
    3. In organizing a jury for the trial of a felony case, if the first panel does not contain forty-eight jurors, and the defendant wishes to object to the entire panel, his sole remedy is by written challenge to the array.
    4. Where a person was tried under an indictment charging him with rape, and the judge failed to charge the jury on the form of their verdict in the event they should convict the accused of assault with intent to rape, and the jury were recalled for this purpose, it is not cause for a new trial that the judge, in recharging the jury, did not make “any reference whatever to the verdicts of not guilty or of guilty with recommendation as to be punished for a misdemeanor.” The additional charge must be considered in connection with the former charge; and, as that is not objected to, we must presume, in the absence of the charge from the record, that the judge in the original charge properly instructed the jury as to the form of their verdict in the event they should decide that the defendant was not guilty. Assault with intent to rape a girl under fourteen years of age is not a reducible felony. Tobin v. Slate, 29 Ga. App. 305 (2) (115 S. E. 36).
    5. “In a case where a defendant is convicted of assault with intent to ' rape, it is not essential that the testimony of the female in question be corroborated. Rivers v. Stale, 8 Ga. App. 703 (2) (70 S. E. 50), and citations. This rule was not changed by the act of the General Assembly approved July 31, 1918 (Ga. L. 1918, p. 259).” Atkins v. Stale, 29 Ga. App. 255 (2) (115 S. E. 35).
    6. As to the facts, this case is controlled by the majority opinion in Byrd v. State, 2S Ga. App. 504 (111 S. É. 924).
    Decided November 15, 1923.
    Conviction of assault with intent to rape; from Tattnall superior court—Judge Sheppard. June 30, 1923.

      II. H. aiders, a. C. Collins, for plaintiff in error.

      J. Saxlon Daniel, solicilor-general, contra.
   Bloodwortií, J.

We will amplify the 3d'headnote only. Ground 4 of the motion for a new trial alleges that the movant should be given a new trial because when the case was called there were only forty-eight jurors in court, two of whom were disqualified, and that he was “entitled to have a panel of forty-eight jurors put upon him for the purpose of selecting the jurors in said case.” This ground does not show that then and there the accused, challenged the array in writing, as provided by section 998 of the Penal Code of 1910. In Moon v. State, 68 Ga. 694 (1), Justice Speer said: “It was the duty of the prisoner, when the panel of jurors was put upon him, to challenge the array for any cause going to show that it was not fairly or properly impanelled, or ought not to be put upon him. So that the court could then determine the sufficiency of the challenge at once.” Judge Powell, in Ivey v. State, 4 Ga. App. 831 (62 S. E. 566), said: “The putting on of the panel may be waived expressly or by implication. Vaughn v. State, 88 Ga. 731 (16 S. E. 64). If the panel does not contain the requisite number of jurors when it is put upon the defendant, the law prescribes, in Penal Code, § 972 (Code of 1910, § 998), his sole remedy,—he may challenge the array. If he does not challenge the array, no other method of complaint as to the deficiency of the panel is open to him., Jordan v. State, 22 Ga. 546; Thomas v. State, 27 Ga. 287; Moon v. State, 68 Ga. 695.” Under the foregoing rulings there is no merit in this ground of the motion.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


author: Bkoyles, C. J.

text:
    14921.
    Lacy v. The State.
    Decided November 15, 1923.
    Indictment for larceny of cattle; from Bibb superior court-judge Mathews. July 3, 1923.

      John B. Cooper, W. 0. Cooper Jr.-, for plaintiff in error.

      Charles II. Garrett, solicitor-general, contra.
   Bkoyles, C. J.

The verdict was authorized by the evidence, and neither of the special grounds of the motion for a new trial shows error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    14931.
    Germany v. The State.
   Luke, J.

Eor the alleged reason that the conviction was had upon the uncorroborated testimony of accomplices, the defendant, contends that the court erroneously overruled his motion for a new trial. It is clear, from the record, that the conviction was fully authorized by the evidence and was not dependent wholly upon the evidence of accomplices. The court properly overruled the motion for a new trial.

Decided November 15, 1923.

Indictment for aiding escape; from Pike superior court—Judge Searcy. July 14, 1923.

John B. Cooper, W. 0. Cooper Jr., for plaintiff in error.

B. M. Owen, solicitor-general, contra.

Judgment affirmed.

Broyles, O. J., and Bloodwortfo, J., concur.


author: Bloodwoeti-i, J.

text:
    14934.
    CROW v. THE STATE.
    This court cannot hold that the trial judge abused his discretion in overruling a motion for a new trial based only on alleged insufficiency of evidence to support the verdict, where he approved the verdict and a different verdict was not absolutely demanded by the evidence.
    Decided November 15, 1923.
    Indictment for possession of liquor; from Habersham superior court—Judge J. B. Jones. June 5, 1923.

      J. J. & Sam Kimzey, I. H. Sutton, for plaintiff in error.

      Robert McMillan, solicitor-general, contra.
   Bloodwoeti-i, J.

The motion for a new trial contains the general grounds only. A verdict for the defendant was not absolutely demanded by the evidence; the finding of the jury has the approval of the judge who tried the case, and we cannot say that he abused his discretion in overruling the motion for a new trial. In Rogers v. State, 101 Ga. 562 (28 S. E. 978), Justice Cobb said: “Applications for new trials on the ground that the verdict of the jury is contrary to evidence are addressed to a sound legal discretion to be exercised by the trial judges. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere when there is any evidence which would justify the jury in reaching the conclusion which is set forth in the verdict. While in many cases we would probably not have rendered the verdict returned, and, if we were authorized to pass upon the case as on appeal, would render here a different judgment, still under the established practice of this court as required by the law of the State, we cannot overrule a trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he endorses the finding of the jury which tried the case in Ms presence. TMs is true even in cases where the evidence might be described as weak, nnsatisfactory, and doubtful. The wisdom and discretion of the trial judge is sufficient for us to endorse his judgment in cases of this character.”

Judgment affirmed.

Broyles, O. J., and Lulce, <7., concur.


text:
    14935.
    SHEARER et al. v. THE STATE.
    Where persons tried jointly upon separate accusations, on which separate verdicts and judgments were rendered against them, made separate motions for a new trial, which were overruled in separate orders, a joint bill of exceptions by them to the overruling of the motions could not be entertained by this court.
    Decided November 15, 1923.
    Accusations of possession of liquor; from city court of LaGrange —Judge Duke Davis. July 7, 1923.

      E. A. Jones, J. B. Terrell Jr., Judson Andrews, for plaintiff in error.

      L. L. Meadors, solicitor, contra.
   Broyles, C. J.

1. Separate accusations were brought against Guy Shearer and Frank Nixon for violating the prohibition law, but they elected to be tried jointly, and were so tried. A separate verdict of guilty was returned against each defendant, “and necessarily separate judgments pronounced thereon in order that the findings of the jury might be carried into effect.” Dickey v. State, 101 Ga. 572, 573 (28 S. E. 980). Each of the defendants made a separate motion for a new trial, and each motion was overruled by a separate order of the court. The two defendants excepted to the overruling of their motions and brought their cases to this court in one bill of exceptions.

There is no law authorizing the defendants to unite in one bill of exceptions, and this court is without jurisdiction to entertain such a writ of error. Dickey v. State, supra; Pless v. State, 30 Ga. App. 277 (117 S. E. 770), and citations. The case of Powell v. State, 27 Ga. App. 656 (109 S. E. 515), is distinguished by its particular facts from the case at bar.

Writ of error dismissed.

I/ulce and Bloodworth, JJ., concur.


text:
    14939.
    HAIR v. THE STATE.
    There was sufficient evidence to authorize the conviction.
    Decided November 15, 1923.
    Accusation of carrying concealed pistol; from city court of Black-shear—Judge Mitchell. July 14, 1923.

      Eldon L. Bowen, for plaintiff in error.

      B. Thomas Memory, solicitor, contra.
   Luke, J.

The defendant was convicted of carrying a concealed weapon. His motion for a new trial, which was based upon the general grounds only, was overruled. The evidence was in conflict, but the jury believed, as they had a right to do, the evidence of the State, which authorized the defendant’s conviction. The trial judge approved the verdict. The motion for a new trial was properly overruled.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    14940.
    Lewis v. The State.
    Decided November 15, 1923.
    Conviction of assault and battery; from city court of Carrollton —Judge Hood. July 10, 1923.

      H. G. Strickland, for plaintiff in error.

      Willis Smith, solicitor, Boykin & Boykin, contra.
   Bloodworth, J.

1. Under all the facts of this case and in the light of the qualifying- note of the judge, attached to the ground of the motion for a continuance on account of the illness of one of the attorneys for the defendant, this court cannot say tnat the judge abused his discretion in refusing to continue the case on account of the illness of said counsel who was then in court. Curry v. State, 17 Ga. App. 377 (1-3) (87 S. E. 685), and cases cited.

2. A motion was also made to continue the case on account of the absence of a witness. This motion is defective because it does not show that it was not made for the purpose of delay. Long v. State, 25 Ga. App. 22 (2 a, b) (102 S. E. 359). Moreover, every ground of a motion for a new trial must be complete and understandable within itself, without reference to any other part of the record. While this ground alleges that the accused expected to prove certain stated things by the absent witness, it does not show how or in what manner this evidence would be material.

3. There is evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Luloe, J., concur.


text:
    14943.
    Fuller v. The State.
    Decided November 15, 1923.
    Accusation of larceny; from city court of Blackshear—Judge Mitchell. July 14, 1923.

      Bldon L. Bowen, for plaintiff in error.

      8. Thomas Memory, solicitor, contra.
   Broyles, C. J.

The corpus delicti was sufficiently proved; and this court cannot hold as a matter of law that the jury were not authorized to find that the evidence, while wholly circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt. It follows that the court did not err in overruling the motion for a new trial, which contained only the usual general grounds.

Judgment affirmed,.

Luke and Bloochoorih, JJ., concur.


text:
    14944.
    HENDRIX et al. v. THE STATE.
    The bill of exceptions not having been served as required by law, and there being no waiver of service, the writ of error must be dismissed.
    Decided November 15, 1923.
    Indictment for possession of liquor; from Evans superior court —Judge Sheppard. June 26, 1923.

      II. H. Durrence, 8. T. Brewton, W. G. Warnell, for plaintiffs in error.

      J. Saxton Daniel, solicitor-general, contra.
   Luke, J.

The defendants presented a bill of exceptions complaining of the judgment overruling their motion for a new trial, but the bill of exceptions, although property certified, has never been served as provided by law, nor has there been any waiver of service. It necessarily follows that the bill of exceptions must be and is dismissed.

Writ of error dismissed.

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


text:
    14951.
    CASWELL v. THE STATE.
    1. The ground of the motion for a new trial based upon newly discovered evidence as to a threat of the deceased against the accused was properly overruled.
    2. A new trial will not be granted on newly discovered evidence where the sole effect of such evidence is to discredit a witness. Moreover, in this case the State made a coimter-showing, and this court will not say that the judge abused his discretion in determining as to the credibility of the alleged newly discovered evidence.
    Decided November 15, 1923.
    Conviction of manslaughter; from Heard superior court—Judge Eoop. July 13, 1923.

      J. B. Terrell, Smith & Millican, for plaintiff in error.

      W. Y. Atkinson, solicitor-general, D. B. Whitaker, contra.
   Bloodworth, J.

The motion for a new trial in this case contains two special grounds, each of which is based upon newly discovered evidence. The newly discovered evidence in the first of these grounds is that of a threat made by the deceased against the plaintiff in error, in which the former is alleged to have said that he was going to kill the latter. One of the firmly fixed rules of practice in this State is that each special ground of a motion for a new trial mtust be complete within itself. A new trial will not be granted on such a ground unless, without reference to any other portion of the record, it shows reversible error. It is also well established by repeated rulings of the Supreme Court that “as a preliminary foundation to the admissibility of an uncommunicated threat by the deceased against the defendant, it must be shown that the deceased was the assailant in the fatal encounter, or did some overt act showing an intention to carry that threat into execution.” Vincent v. State, 153 Ga. 291 (112 S. E. 120), and cases cited. In the Vincent case, just referred to, the Supreme Court said: “When the evidence leaves it doubtful as to which of the parties began the mortal combat, and there is testimony tending to show that the slayer killed his adversary in self-defense, evidence of this character may be received to show the state of mind or feeling on the part of the deceased, and thus illustrate his conduct and throw light upon his intention and purpose in the fatal encounter.” The ground of the motion for a new trial now under consideration fails to show that under the ruling in the foregoing cases the alleged threat would be admissible, and this court is not required to “wade through the entire record” to ascertain this fact. If the newly discovered evidence is not shown to be admissible, a new trial should not be granted because of it. When applications for new trials are made on this ground it is one of the cardinal rules that the newly discovered evidence must be “so material that it would probably produce a different verdict if a new trial were granted.” This result would hardly follow in this case when the verdict rendered and ad the facts are considered. In addition to the above, as is well known, the granting of new trials on the ground of newly discovered evidence is not favored by the courts, and “the discretion of a trial judge in refusing a new trial on such grounds will not be controlled unless manifestly abused. Tilley v. Cox, 119 Ga. 867, 872 (47 S. E. 219).” Hayes v. State, 16 Ga. App. 334 (85 S. E. 253).

The other special ground of the motion for a new trial is based upon the alleged newly discovered evidence of Harvey Gordon. The only effect of this evidence would be to contradict the evidence of witness Summerlin. “Though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would be to impeach the witness a new trial will not be granted.” Key v. State, 21 Ga. App. 795 (1) (95 S. E. 269). Moreover, as to this evidence the State made a counter-showing, and when this is done “the trial judge is the trior of the facts, and it is his province to determine the credibility of the conflicting facts and contradictory witnesses. A reviewing court will not in any such case control his discretion as to the comparative credibility of the witnesses who testify in support of the motion and those who swear to the contrary.” Fouraker v. State, 4 Ga. App. 692 (1) (62 S. E. 116); Jordan v. State, 120 Ga. 864 (5) (48 S. E. 352); Wilcher v. State, 118 Ga. 196 (2) (44 S. E. 995); Mitchell v. White, 74 Ga. 328 (5).

In the brief of counsel for plaintiff in error the general grounds of the motion for a new trial are expressly abandoned.

Judgment affirmed.

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


text:
    14953.
    Worthy v. The State.
    Decided November 15, 1923.
    Accusation, of possession of liquor; from city court of Dawson— Judge Edwards. July 28, 1923.

      R. R. Marlin, for plaintiff in error.

      W. E. Gurr, solicitor, contra.
   Luke, J.

The evidence fully authorized the defendant’s conviction, and the court, having approved the verdict, properly overruled the motion for a new trial, which was based only on the usual general grounds.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., eonow.


text:
    14956.
    EAST v. THE STATE.
    As there was no evidence to authorize it, the judge erred in giving to the jury the charge complained of.
    Decided November 15, 1923.
    Accusation, of possession of liquor; from city court of Eloyd county—Judge Nunnally. July 23, 1923.

      F. W. Copeland, for plaintiff in error.

      James Maddox, solicitor, contra.
   Bloodworth, J.

Plaintiff in error was convicted of having in his possession intoxicating liquor. He made a motion for a new trial, which was overruled, and he excepted. The court is alleged to have erred in giving to the jury the following instructions: “If the defendant in this case gave money to the witness, a stipulated amount, and he was instructed to go and purchase whisky with it for him, the defendant, no interest being reserved to the witness making the purchase, but he, simply acting as agent for the defendant, went and bought whisky for the defendant, then the possession of the witness was the possession of the defendant, because he was the agent of the defendant, and he controlled that liquor in the hands of his agent. If you believe those to be the facts in this case, that the defendant gave money to a witness to go and make a purchase, and the witness became his agent in that way, and the witness accepted the agency and acted for the defendant as agent and purchased the whisky with the money the defendant gave him, he would .become the agent of the defendant, and the act of the agent would be the act of the defendant in that particular, and if he held it, he held it for his principal, the defendant; and if those be the facts, you would be authorized to find the defendant guilty on the first count, that of having whisky in his possession.” The only evidence upon which this charge could have been based is the following: “Defendant and I were at the company’s store when this negro Ford came by us and said to the defendant, ‘Do you want a pint of liquor?’ and defendant said ‘Yes.’ Ford said, ‘Come on down to the bridge.’ We waited a little while and went on down to the bridge. When defendant and I got to the bridge we found these two negroes at the bridge (Ford and Carmichael). Defendant gave Ford $1.25, and Ford said, ‘I will have to go down the branch a piece to get it.’ He was gone just a little while and brought the whisky back, and as he came back up the branch Mr. Dunahoo came in sight with his baby in his arms, and when Ford saw him he ran and never delivered the whisky.” We do not think this evidence authorized the foregoing instruction. In Paschal v. State, 84 Ga. 326 (2) (10 S. E. 821), it was held: “One who receives money and delivers, whisky therefor may be treated as the seller, no other person filling that character in the transaction being pointed out by the evidence.” And see Grant v. State, 87 Ga. 265 (13 S. E. 554). Of course, if Ford was the seller, he was not the agent of the defendant, the purchaser, and if the whisky was never delivered to the defendant he was never in possession of it, and the charge given was erroneous. The judge erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, O. J., and Lulce, J., concur.


text:
    14976.
    McPHERSON v. THE STATE.
    After charging- the jury in a criminal case that they “are the judges of the law and facts,” it is not error to add: “but are judges of the law only in the sense as it is construed and given you in charge by the court.” *
    Decided November 15, 1923.
    Accusation of violations of liquor law; from city court of Macon —Judge Gunn. August 3, 1923.

      E. W. Butter, Olin J. Wimberly, for plaintiff in error.

      Boy W. Moore, solicitor, contra.
   Luke, J.

The defendant was convicted of violating the prohibition statute. He assigns error upon the overruling of his motion' for a new trial. His insistence is that the court erred in charging the jury as follows, to wit: “You áre the judges of the law and facts, but are judges of the law only in the sense as it is construed and given you in charge by the court.” It was contended that this was error because “it makes the jury judge only of the facts, and takes away from the defendant his right to have the law of his case construed and passed upon by the jury.” The charge of the court was full and fair, and the excerpt complained of was not error. Park’s Penal Code, § 1059, and citations. The court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworih, J., concur.


author: Bkoyles, 0. J.

text:
    14979.
    Wayham v. The State.
    Decided November 15, 1923.
    Accusation of cheating and swindling; from city court of Richmond county—Judge Black. August 8, 1923.

      0. Lee White, for plaintiff in error.

      W. Inman Curry, solicitor, contra.
   Bkoyles, 0. J.

The verdict was amply authorized by the evidence, and none of the special grounds of the motion for a new trial is meritorious.

Judgment affirmed.

Luke and Bloodworih, JJ., coneur.


text:
    14985.
    CRUTCHFIELD v. THE STATE.
    The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
    Decided November 15, 1923.
    Indictment for manufacture of liquor; from Sumter superior court—Judge Littlejohn. August 4, 1923.

      Zach Childers, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Luke, J.

The defendant in this case contends that his conviction of the crime of which he was charged was not authorized by the evidence, and he further contends that the court erred in overruling certain objections to testimony. The evidence fully authorized the conviction, and the court property overruled his objections to the testimony complained of. The court having approved the verdict, it was proper to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworih, J., concur.


text:
    14986, 14987.
    Daniel v. The State (two cases).
    Decided November 15, 1923.
    Indictment for assault and battery, etc.; from Randolph superior court—Judge Custer presiding. July 28, 1923.

      Charles W. Worrill, for plaintiff: in error.

      B. T. Casiellow, solicitor-general, B. B. Arnold, contra.
   Bloodworth, J.

There is sufficient evidence to support the finding of the jury, which is approved by the trial judge, and, as no error of law was committed, the court properly refused a new trial.

Judgment affirmed.

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


text:
    14990.
    RENEW v. THE STATE.
    The evidence authorized the verdict.
    Decided November 15, 1923.
    Indictment for manufacture of liquor; from Randolph superior court—Judge Custer presiding. July 28, 1923.

      Charles W. Worrill, for plaintiff in error.

      B. T. Gastellow, solicitor-general, B. B. Arnold, contra.
   Luke, J.

The defendant was convicted of violating the prohibition statute. The evidence was amply sufficient to authorize the conviction. Indeed, the sheriff testified that the defendant confessed his guilt; and the confession was not denied or attacked. The court, after having approved the verdict, property overruled the motion for a new trial.

Judgment affirmed,.

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


text:
    14992.
    Hayes v. The State.
    Decided November 15, 1923.
    Conviction of assault with intent to murder; from Whitfield superior court—Judge Tarver. August 11, 1923.

      F. K. MeGutchen, Stafford B. Brooke, for plaintiff in error.

      J. M. Lang, solicitor-general, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and neither ground of the amendment to the motion for a new trial shows harmful error.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.


text:
    14993.
    Hayes v. The State.
    Decided November 15, 1923.
    Description of ease and names of counsel the same as in the next preceding ease.
   Broyles, C. J.

The verdict was authorized by the evidence, and neither ground of the amendment to the motion for a new trial shows harmful error.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.


text:
    14995.
    YOUNG v. THE STATE.
    A postponement of the trial until another day of the term should have been granted to enable the accused to procure the attendance of a material witness who resided in an adjoining county; and the judge’s refusal to postpone requires a new trial.
    Decided November 15, 1923.
    Indictment for sale of liquor; from Murray superior court-judge Tarver. August 25, 1923.
    The indictment alleged, and it was testified, that Pete Young sold intoxicating liquor on August 5, 1923. On that day—Sunday —he was arrested and placed in jail, and he remained there until the day of his trial,—Monday, the 13,th of August,—on which day the indictment was returned. The conviction was based on testimony of Mack Young, who stated that he bought liquor at the defendant's house, and that Charlie Bagley was there at the time of the sale. When the case was called for trial the accused requested a postponement of the trial “until to-morrow or next day," to enable him to secure the attendance of Charlie Bagley, whose evidence, it was stated, “would disprove the testimony of Mack Young.” From the evidence in support of the motion to postpone, it appeared that on the next day after his arrest the defendant was told by officers and a magistrate before whom he was brought that he was accused of selling liquor to Mack Young; and he testified that on the following Friday he gave a list of witnesses, including Charlie Bagley, to his uncle Frank Duggar, and that Charlie Bagley then lived in the adjoining county of Whitfield. Duggar testified that on the same day he took the list to the office of the clerk of the superior court, that the clerk was not there, that after waiting for some time he gave the list to’ the sheriff and requested the sheriff to have the subpoenas issued and to serve them, and ‘that he did not know until noon of the day of the trial that the subpoenas were not served. There was evidence as to efforts of an officer to serve subpoenas on the defendant’s witnesses, and his inability to find the witnesses. The witness Duggar stated that he would undertake to serve a subpoena on Bagley “and get him here by to-morrow.”
    The trial judge, after hearing the witnesses, said: “There has been ample time for the defendant to have subpoenaed these witnesses, provided they could have been reached. One of them is out of the county, according to the evidence; and the evidence is that the contention of the defendant was, on last Monday when he was brought before the court at Ringgold and then and there informed that he was charged with having sold whisky to Mack Young on the day before at his house, that Mack Young was not at his house on that day. Under all the circumstances I overrule the motion.”
    Maddox, McCamy & McFarland, for plaintiff in error.

      Joseph M. Lang, solicitor-general, contra.
   Luke, J.

The defendant was convicted of violating the prohibition statute. He complains that the court erred in not postponing his case to procure the testimony of a witness who resided in an adjoining county. On the day that the indictment was returned against him he was arraigned for trial and made his application, not to continue the case for the term, but to postpone it until the next day, so that he migljt have the benefit of the testimony of his absent witness, which according to his evidence would have been material to his defense. The court overruled the motion to postpone. Under the particular facts of this case, we are of the opinion that it was error not to postpone the case, and for this reason, it was error to overrule the motion for a new trial.

Judgment reversed.

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


text:
    14997.
    Hutchinson v. The State.
    Decided November 15, 1923.
    Indictment for embezzlement; from Wilcox superior court-judge Crum. July 28, 1923.
    The indictment charged M. W. Hutchinson with “the offense of embezzlement, for that the said M. W. Hutchinson, on the 9th day of December in the year 1919, in the county [of Wilcox] aforesaid, did then and there, unlawfully and with force and arms, being then and there the duly elected and qualified tax-collector in and for the County of Wilcox, said State, and as such tax-collector and by virtue of his office as such tax-collector of said county, did at divers times from January 1st, 1917, and on dates from then up to December 9th, 1919, collect and receive from divers persons due and owing to the said County of Wilcox county taxes amounting to $10,873.25, of the value of $10,873.25, of the property of said County of Wilcox, did embezzle, steal, secrete, and fraudulently take and carry away and fraudulently appropriate to his own use the said sums of money hereinbefore alleged, contrary to the laws of said State,” etc.
   Bloodworth, J.

1. The court did not err in overruling the demurrer to the indictment.

2. Some of the grounds of the amendment to the motion for a new trial, based on the admission of evidence, are too indefinite for consideration and are not complete within themselves. To understand them would require reference to other parts of the record; and for no reason assigned in any of the grounds based on the admission of evidence did the court err in admitting the evidence of which complaint is made. Moreover-, in admitting a portion of this evidence the court expressly limited its application, and in charging the jury told them, “you would not be authorized to convict the defendant on account of any other matter, act, or transaction other than those set forth in the indictment.” To support his contention in reference to certain of these grounds counsel relies on Hoyt v. State, 50 Ga. 313. The facts in that case easily differentiate it from this one. See, in this connection, Hays v. State, 114 Ga. 28 (40 S. E. 13); Berrien v. State, 156 Ga. 380 (4a) (119 S. E. 300). As to the extent to which an expert accountant who has made an examination of books which are then in court can testify to what is shown by the books, see Cabaniss v. State, 8 Ga. App. 129 (14) (68 S. E. 849); Spence v. State, 20 Ga. App. 62 (11) (92 S. E. 555); Payne v. Franklin County, 155 Ga. 219 (2) (116 S. E. 627).

3. The court did not err in refusing to give the instructions requested by counsel for the plaintiff in error, as the principles embraced in the requests, so far as they were legal and pertinent, were substantially and sufficiently covered by the charge given.

4. The evidence authorized the verdict, which has the approval of the trial judge, and as no error of law was committed, the judgment must stand.

Judgment affirmed.

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

The demurrer was on the following grounds: (1) No facts are specifically set forth on which the State claims the crime to have been committed. (2) The indictment does not set forth with sufficient certainty the facts on which the State contends that its case against this defendant is founded, to put the defendant on notice and enable him to properly prepare his defense. (3) The indictment charges the defendant with having collected the sum of $10,873.25, and alleges that he embezzled the same amount, but it fails to show whether the said sum is the whole amount that came into his hands, and fails to show that he has never paid any part of the money that came into his hands to Wilcox County. (4) The indictment fails to allege that the money alleged to have been collected and embezzled was money due Wilcox County for taxes for any year during which the defendant was tax-collector.

Bldridge Quits, Hal Lawson, for plaintiff in error.

J. B. Wall, solicitor-general, U. V. Whipple, J esse Graniham, B. 0. Holton, contra.


author: Broyles, O. J.

text:
    15000.
    JACKSON v. THE STATE.
    Under tlie section of the code which in case of removal of a county-site provides that the courts required by law to be held at the county-site shall, under proper orders of the judges thereof, be held “in the old buildings at the former county-site until the new buildings at the county-site are ready for occupancy” (Political Code, § 502), the city court of Arlington had jurisdiction to sit for the trial of this case in the city of Morgan, the former county-site of Calhoun county and former place of holding the city court of Morgan, the name of which court had been changed to that of city court of Arlington (Ga. L. 1923, pp. 137, 217).
    Decided November 15, 1923.
    Accusation of larceny; from city court of Arlington—Judge E. L. Smith. August 22, 1923.
    The defendant was arraigned on a criminal charge in the city court of Arlington, which was convened under the following order of the judge of that court: “It appearing to the court that by an act of the General Assembly of Georgia approved July 27th, 1923, the county-site of Calhoun county was changed and removed from Morgan to Arlington in said county, and by a subsequent act of the same General Assembly the name of the city court of Morgan was changed from the city court of Morgan to the city court of Arlington, and it appearing further that the county authorities of Calhoun county have not as yet provided a place for holding the courts of the county at the new county-site, and that there are no buildings at the new county-site so provided and ready for occupancy, it is hereby ordered, in conformity with the provisions of section 502 of the Political Code of Georgia, that this court, to wit, the city court of Arlington, formerly the city court of Morgan, be continued to be held at the old county-site, to wit, at Morgan, Ga., at the places provided for holding the same by the county authorities of said county, until a place is provided for holding the same at the new county-site and said place is ready for occupancy. Let this order be entered on the minutes of this court.. Done at Morgan, Ga., this 22d day of August, 1923. [Signed] E. L. Smith, Judge city court of Arlington.” After the signing of this order the defendant’s case was called for trial and he filed the following sworn plea: “Now comes the defendant, before pleading in said case in the above-stated case, and files this his plea to the jurisdiction of the city court of Arlington, as follows: 1. The city court of Arlington cannot legally be held in the city of Morgan, Calhoun county, Georgia. And this court, being held in Morgan, is illegally held, and held contrary to law. 2. The order passed by the court conveying this court was passed in Morgan, Ga., signed there, at the time and just a few minutes prior to the trial of this case. Said order is void and of no effect, because the judge has no right under the law to pass an order convening said city court at any other place than that provided in the act creating the city court. At the session of the General Assembly of 1923, just closed, there was a bill passed by the General Assembly and approved by the Governor, removing the county-site from Morgan to Arlington in said county. There was at the time this act was passed a city court in said county, known as the city court of Morgan. The act creating said city court provided that said city court of Morgan be held at Morgan, Ga. Subsequent to the passage of the act removing the county-site of Calhoun county from Morgan to Arlington an amendment was passed by the General Assembly, changing the name of the city court of Morgan to the ‘city court of Arlington/ and providing also for the city court of Arlington to be held in Arlington, Ga. This act amending the act creating the city court of Morgan changed by legislative act the place for holding said city court of Arlington from Morgan to Arlington, and said act was passed and approved subsequent 'to the passage and approval of the act removing the county-site from Morgan to Arlington. It therefore follows that the city court of Arlington cannot be legally held at any place other than in the city of Arlington, and this defendant objects to being put on trial in said court, in this session of said court now being held in.Morgan, for the reason that said court is illegally held and held contrary to law. Defendant is entitled to be tried by a court competent to try him, and by a court legally held at the place of holding said court. Wherefore he prays judgment.”
    The city court of Morgan was created by the General Assembly in 1916 (Ga. L. 1916, p. 271), the city of Morgan being at that time the county-site of Calhoun county. By an act of the General Assembly approved July 27, 1923 (Ga. L. 1923, p. 217), the county-site of Calhoun county was changed from Morgan to Arlington. Subsequently, by an act approved August 18, 1923 (Ga. L. 1923, p. 137), the act of 1916 creating the city court of Morgan was amended by changing the name of the court from the “city court of Morgan” to the “city court of Arlington,” and by changing the place of holding the court from the city of Morgan to the city of Arlington. It is provided in section 13 of the act of 1916, creating the city court of Morgan, that the judge of the court shall have authority to call a special term of the court at any time for the disposal of criminal business, by entering a proper order on the minutes of the court.

      A. L. Miller, for plaintiff in error.

      J. M. Qowart, solicitor, contra.
   Broyles, O. J.

(After stating the foregoing facts.) The only-question argued in the brief of counsel for the plaintiff in error is as to the jurisdiction of the court. Section 502 of the Political Code provides as follows: “Whenever a county-site shall be removed as provided by law, all the courts of this State which are required by law to be held at the county-sites of their respective counties, by proper orders made by the judges thereof, either at chambers or in regular session, which order shall be entered on the minutes of such court, shall be held in the old buildings at the former county-site until the new buildings at the county-site are ready for occupancy, and all the proceedings of any of such courts, so held, shall be legal.” The city court of Morgan being a constitutional city court, its sessions were required by law to be held at the county-site of Calhoun county. The act of 1923, amending the act creating the court, did not create a new court, but merely changed its name and provided that it should be held at Arlington, the new county-site of Calhoun county. In our opinion the question as to the jurisdiction of the court is settled by the provisions of the code just quoted. In other words, we think that the trial judge properly overruled the plea to the jurisdiction of the court.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Luke, J.*

text:
    McCOLLUM v. THE STATE.
    A conviction of violation of the prohibition law, in having possession or control of intoxicating liquor, was not authorized by the evidence in this case.
    Decided November 15, 1923.
    Indictment for possessing liquor; from Cherokee superior court —Judge Blair. August 25, 1923.
    The witnesses for the State were a Federal prohibition agent and a deputy sheriff. The former testified: “On the 24th day of January, 1922, in company with Guy Blackwell, deputy sheriff of Cherokee county, I made an investigation at the residence of the defendant, Sam McCollum, with reference to his possession of intoxicating whisky. Eighty-six steps from his barn we found two fermenters containing several hundred gallons of still beer, made of corn meal and malt, which had reached the state of fermentation that it was ready for the manufacture of corn whisky by distillation. This beer contained alcohol and was an alcoholic liquor. The place where this beer was found was in Cherokee county. It was located near a small stream below the foot of a little bluff or declivity from the defendant’s barn. There were fresh footsteps both to and from this beer leading up to the defendant’s barn. There was no evidence of any travel in any other direction except to the defendant’s barn. This beer was located in what we call an old field, which had not been cultivated for some years and has been allowed to grow up in small timber. We saw the defendant at his residence, which was about 35 steps from his barn, and talked with him on this occasion. He made no statement to us about having recently moved into this house, and we saw no evidence of his having recently moved. His beds were up, and his furniture adjusted, and there was nothing about the appearance of the premises to indicate that it had only recently been occupied by the defendant. We did not search his residence, but did look through his barn, and found no material used in the operation of a distillery; neither did we find any whisky in his barn. I stepped the distance from this beer to his barn, which was 86 steps of approximately one yard each. We had previously raided and destroyed several distilleries in the immediate vicinity of where the defendant resided at that time.” The testimony of the deputy sheriff was substantially the same as that of the preceding witness.
    A witness for the defendant testified, that he was the defendant’s father-in-law, and that the defendant had just finished moving into the house he was occupying on the day the officers made the raid; that the defendant had rented this farm from the witness for the year 1922 and begun moving into the house some days before the raid was made; that he did not recall that the defendant had spent a night in this house until the raid was made; that the witness had gone over the premises since the officers destroyed the beer, and that the defendant pointed out to him what the defendant said was the place where the beer was destroyed, and the place pointed out was not visible from the barn of the defendant, and, according to the measurement of the witness, it was 280 yards from the house in -which the defendant lived, and that he saw no evidence of travel leading from that place to the defendant’s home or barn. The defendant’s statement at the trial was as follows: “In 1921 I resided about four miles from the place where I lived at the time the officers made the raid, and had only finished moving into this house the day the raid was made. I had no knowledge of or connection with the ownership of the beer testified to by them. After this raid was made I made an investigation of the premises. The place where the beer was destroyed was not in sight of my barn or house. There were weeds between the location of the beer and my barn. I did not know anything about the beer and had nothing to do with it.”

      Thomas E. Latimer, George D. Anderson, for plaintiff in error.

      John S. Wood, solicitor-general, contra.
   Luke, J.*

McCollum was convicted of violating the prohibition statute. He asks a new trial upon two grounds: (a) because the evidence does not authorize the verdict, and (5) because of newly discovered evidence. The conviction was dependent wholly upon circumstantial evidence. The evidence, while throwing suspicion of guilt upon the accused, does not meet the requirement of law as to conclusiveness. For the reason that the evidence did not authorize the conviction, it was error for the court to overrule the motion for a new trial.

Judgment reversed.

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


text:
    15009.
    Taylor v. The State.
   Bloodwortii, J.

1. This court cannot say that the trial judge abused his discretion in overruling the motion to continue this case, when the ground of the motion for a new trial relating to it is considered in connection with the qualifying note of the trial judge.

2. A portion of the alleged newly-discovered evidence can in no sense be “newly discovered.” The only effect of so much of the newly discovered evidence as could be treated as such would be to impeach the witnesses for the State, and it is settled law in this State that, even “though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence woxild be to impeach the witness, a_ new trial will not be granted.” Key v. State, 21 Ga. App. 795 (95 S. E. 269).

Decided November 15, 1923.

Indictment for unlawful disposal of crop; from Montgomery superior court—Judge Highsmith. August 8, 1923.

William B. Kent, for plaintiff in error.

M. II. Boyer¡ solicitor-general, contra.

3. There is some evidence to support the verdict, which has the approval of the trial judge, and, no efror of law having been shown, this court is powerless to interfere.

Judgment affirmed.

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


text:
    15129.
    BOATRIGHT v. SPEER, judge.
    Mandamus to require the trial judge to certify a bill of exceptions to his refusal to entertain an extraordinary motion for a new trial will not be granted, under the allegations of the petition in this case.
    Decided November 15, 1923.
    Application for mandamus.

      II. L. Williams, for the applicant.
   Broyles, C. J.

1. Extraordinary motions for new trials, based solely upon the ground of newly discovered evidence, are viewed by the courts with even less favor than original motions based on such a ground, a stricter rule being applied to the former (Norman v. Goode, 121 Ga. 449, 455, 49 S. E. 268), and such a motion is without merit when the alleged newly discovered evidence, although disclosing some facts not in evidence upon the original trial, is in its general character and bearing merely cumulative to that previously presented, and would scarcely have produced a different result on the ordinary motion for a new trial. “Much less can it give to this proceeding the peculiar characteristic of being ‘an extraordinary motion/ ” Cox v. Hillyer, 65 Ga. 57; Griffin v. Brand, 18 Ga. App. 641 (90 S. E. 90).

2. “After a person accused of crime has been convicted and a new trial has been denied him, and the judgment has been affirmed by this court, an extraordinary motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial judge; and his judgment in passing upon the motion will not be disturbed, unless it appears that his discretion is abused.” Griffin v. Brand, supra.

3. . It is well settled that the trial court is authorized to overrule a motion for a new trial based upon alleged newly discovered evidence, where it is not shown that the movant and his counsel, by the exercise of ordinary diligence, could not have discovered such evidence before the trial; and a bare recital in the affidavit of the movant and his counsel that they could not have discovered it by the exercise of ordinary diligence is but a mere conclusion, without a disclosure of the facts upon which the conclusion is based, and the trial judge is not bound to conclude that the movant and his counsel have exercised the required diligence. Patterson v. Collier, 77 Ga. 292 (3); Taylor v. State, 132 Ga. 235 (3), 237 (3) (63 S. E. 1116); Evans v. Grier, 29 Ga. App. 426 (3) (115 S. E. 921).

4. In the instant case the petitioner has been granted one writ of error from the final judgment against him in the lower court, and since his present extraordinary motion for a new trial is based solely upon alleged newly discovered evidence which, while disclosing some facts not in evidence upon the trial, is in its general character and bearing merely cumulative to the case heretofore presented, and would not probably have produced a different result on the ordinary motion for a new trial, and since the affidavit of the movant and his counsel recites merely .that they did not know of the alleged newly discovered evidence until after the trial of the case, and “that the same could not have been discovered by the exercise of ordinary diligence,” without stating the facts upon which such a conclusion is based, this court cannot say that the trial judge abused his broad discretion in refusing to entertain the extraordinary motion for a new trial, or in refusing .to sign and certify a bill of exceptions complaining of such refusal.

Mandamus nisi denied.

Lulce and Bloodworth, JJ., concur.


author: Jenkins, P. J.

text:
    13886.
    Alvaton Mercantile Company v. Caldwell et al.

   Jenkins, P. J.

Under the answers of the Supreme Court to the controlling questions in this ease, certified to it by this court, where an attachment is levied and declaration filed, and the defendant files a counter-affidavit and plea of not indebted, and gives a replevy bond with sureties, conditioned to “pay the plaintiff the amount of the judgment and the costs that he may recover in the case,” and by virtue of the bond receives back the property levied on, and where the attachment debtor, more than four months after the levy of the attachment and the giving of the bond, is adjudged a bankrupt and receives his discharge, and such discharge is pleaded in the attachment proceeding, the bankruptcy-act does not prevent the city court trying the cause from rendering judgment against the principal defendant, with perpetual stay of execution, for the purpose of permitting the plaintiff to take judgment against the sureties on the dissolution bond. “Under the Civil Code (1910), § 5928, the court below can so mold its judgment as to do full justice to the parties, and to enable the plaintiff to enforce its right.” 156 Ga. 317. It was therefore error for the court below, passing on the law under the agreed statement of facts, to render judgment -against the plaintiff, but a judgment should have been rendered for the plaintiff against the principal defendant, with perpetual stay of execution, for the purpose of taking judgment against the sureties on the replevy bond.

Decided November 15, 1923.

Attachment; from city court of Greenville—Judge McGraw. July 24, 1922.

McLaughlin & Jones, Hall & Jones, for plaintiff.

E. A. Allen, J. F. EalcheU, N. F. Culpepper, for defendant.

Judgment reversed.

Stephens and Bell, JJ., ooneu/r.


text:
    14080.
    Jones v. Georgia Casualty Company.
    Decided November 23, 1923.
    Appeal; from Calhoun superior court—Judge Custer. October 12, 1922.

      A. W. Cozart, TF. Cecil Neill, for plaintiff.
    P. F. Broclc, Sparlcs & Bussell, Arnold & Battle, for defendant.
   Jenkins, P. J.

It appearing from the remittitur and the opinion of the Supreme Court that the judgment of this court rendered in this case (30 Ga. App. 207, 117 S. E. 467) has been reversed, the former judgment of this court is vacated, and, in accordance with the ruling of the Supreme Court, the judgment of the court below is affirmed. Georgia Casualty Co. v. Jones, 156 Ga. 664 (119 S. E. 721).

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    14235.
    Cunningham Brothers v. Louisville & Nashville Railroad Co.
    Decided November 23, 1923.
    Certiorari; from Fulton superior court—Judge Bryan. November 29, 1922.
    IF. PL. Lewis, Paul L. Lindsay, for plaintiff.

      Tye, Peeples & Tye, for defendant.
   Bell, J.

This was an action for damages in the municipal court of Atlanta, which resulted in a verdict for the defendant. A different verdict was not demanded by the evidence, and there was no error in overruling the certiorari of the plaintiff, based on the general grounds only.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eoneu/r.


text:
    14255.
    Barron G. Collier Inc. v. Bailey.
    Decided November 23, 1923.
    Certiorari; from Bibb superior court—Judge Malcolm D. Jones. January 5, 1923.

      Jones, Parle & Johnston, for plaintiff.

      Powers & Powers, for defendant.
   Bell, J.

1. Where a party who is sued upon a contract defends upon the ground that he was induced to sign it by the misrepresentation of material facts, made under circumstances amounting to fraud, it is competent for him to testify that the representation induced him to act, and that without it he would not have entered into the contract. Chandler Co. v. Price, 10 Ga. App. 383 (1) (73 S. E. 413); Civil Code (1910), § 4410; 12 R. C. L. 431, 178. See also notes in 23 L. R. A. (N. S.) 393-4. The municipal court therefore erred in rejecting the evidence of this character, as alleged in paragraphs 6 and 7 of the certiorari.

2. Independently of the above, the evidence admitted did not demand the verdict as directed for the plaintiff, and the superior-court judge did not err in setting the verdict aside on the defendant’s certiorari. This evidence would have authorized the inference of fraudulent misrepresentations of material facts by the agent of the plaintiff, acted on by the defendant to his injury, and also of such artifice as would justify a. finding that the defendant was relieved of the duty of reading the contract to ascertain its terms before its execution. Under these circumstances the defendant’s evidence of the plaintiff’s representations was not ineffective as contravening the parol-evidence rule, though some (but not all) of the alleged representations were at variance with the writing. Patapsco Shoe Co. v. Bankston, 10 Ga. App. 675 (2), 677 (74 S. E. 60); Angier v. Brewster, 69 Ga. 362 (1); Brooks v. Matthews, 78 Ga. 739 (3 S. E. 627); Chandler Co. v. Price, supra; McBride v. Macon Telegraph Pub. Co., 102 Ga. 422 (2) (30 S. E. 999).

Judgment affirmed.

Jenldns, P. J., and Stephens, J., concur.


text:
    14281.
    Sea-Island Cotton Gin Co. v. Fowler.
    Decided November 23, 1923.
    Complaint; from Treutlen superior court—Judge Graham. December 27, 1922.

      M. B. Calhoun, for plaintiff.

      W. J. Wallace, for defendant.
   Bell, J.

The verdict as rendered not being demaftded, the first grant of

a new trial will not be disturbed.

Judgment affirmed.

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


text:
    14361.
    Hughes v. Bivins.
   Bell, J.

I. Where an owner of realty sells to another, “successors and assigns,” the timber on the lands for sawmill purposes, including the usual right of ingress and egress, with the further privilege of establishing a sawmill upon the premises, one who is employed by a transferee of the purchaser to cut, haul, and saw the timber at a certain sum per thousand feet, and who on entering the premises for that purpose is forced by the threats and violence of the vendor of the timber to vacate the premises and to cease his employment, is entitled to maintain an action in tort against the vendor for the wrongful interference with his right of possession. Civil Code (1910), §§4470, 4472; Daniel v. Perkins Logging Co., 9 Ga. App. 842 (72 S. E. 438).

2. What the plaintiff would have earned net, and the cost of paying idle labor and of keeping idle teams, necessarily expended, during the enforced interruption, are legitimate items of special damage, not exceeding the gross price which the plaintiff would have received under his contract for converting the timber into lumber. Civil Code (1910), §§4502, 4505, 4508, 4510; Southwestern Railroad Co. v. Vellines, 14 Ga. App. 674 (2) (82 S. E. 166); Smith v. Eubanks, 72 Ga. 280 (8 a); Carlisle v. Callahan, 78 Ga. 320 (2) (2 S. E. 751); Stevens v. Stevens, 96 Ga. 374 (3) (23 S. E. 312); Telfair County v. Webb, 119 Ga. 916 (2) (47 S. E. 218); Georgia Railway & Electric Co. v. Wallace, 122 Ga. 547 (4) (50 S. E. 478); Telfair County v. Clements, 1 Ga. App. 437 (2) (57 S. E. 1059); Southern Railway Co. v. Stearns, 8 Ga. App. 111.

(o) Evidence of the net earnings which the plaintiff had previously and thitherto made at the same employment under the identical contract, and under similar conditions, determined by the average daily output of the mill, is admissible in support of the petition. Southwestern Railroad Co. v. Vellines, supra.

(b) Irrespective of whether the elements of damage stated above would be appropriate in an action for a breach of contract, “a very definite difference is generally recognized between consequential damages which may be recovered for the breach of a contract and similar damages recoverable for a tort.” In a case of tort it is unnecessary for the plaintiff to show that the defendant had knowledge of the contract between him and his employer. Southwestern Railroad Co. v. Vellines, supra.

3. In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages. Civil Code (1910), §4503. While the additional damages provided for by this section cannot be imposed in any case unless there is wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences (Southern Railway Co. v. O’Brien, 119 Ga. 147 (1), 45 S. E. 1000; Cole v. Western Union Telegraph Co., 23 Ga. App. 479 (3), 98 S. E. 407), yet the averments in the instant case, showing that the defendant was acting without right, and charging that she assaulted the plaintiff, struck him with a stick and a snake, and beat his mules an.d threatened his employees, and that the acts so committed were “wanton, malicious, wilful and vindictive,” were sufficient upon which to predicate a claim for punitive damages.

4. The rulings made above are controlling of the exceptions to the overruling of the demurrer to the petition, and of the special assignments in the motion for a new trial, excepting complaints of irregularities at the reception of the verdict. None of the rulings were erroneous. The charges were in accordance with the law and warranted by the evidence.

(а) The evidence did not demand, even if it authorized, a finding that the plaintiff’s claim of the right to locate the sawmill on the place in controversy, and to cut certain timber which the defendant denied his right to cut, had been determined against him by arbitration. The conclusion was warranted that the only thing done in respect to adjusting these differences was an effort between the defendant and the plaintiff’s employer, by or with their counsel, to compromise the matters in dispute, but that, without any agreement being reached (none is indisputably shown), the plaintiff, at the voluntary suggestion of his employer, settled his mill at another place, for the purpose of avoiding additional damage by'reason of threatened continued interferences by the defendant. Even assuming that a compromise agreement was shown without question, it jloes not conclusively appear that the settlement included a determination that the plaintiff had thitherto proceeded without right, or that his claim for past damage was extinguished, but it was. inferable that only his future conduct was affected.

(б) Moreover, it appears that prior to the verdict complained of, the claim of the plaintiff in regard to locating the mill and cutting the timber was adjudicated against the defendant in a suit against her by the plaintiff’s employer, wherein upon the finding of a jury her further interference was enjoined.

(c) The evidence did not demand a finding that any of the interruption in the plaintiff’s operations for which he sued was caused by the orders of his employer, or that the plaintiff consented thereto, even though in the meantime there were negotiations for a compromise, but authorized the inference that all of the interruption was the result of the wrongful acts of the defendant.

(d) Where the defendant gave cause for the recovery of punitive or exemplary damages under the Civil Code, § 4503, she would not be absolved by the mere fact that soon thereafter she offered to shake hands with the plaintiff and “make friends,” and that the offer was accepted, though the plaintiff’s subsequent condonation might go in mitigation of the damage.

Decided November 23, 1923.

Rehearing denied February 8, 1924.

Action for damages; from Marion superior court—Judge Munro. February 1, 1923.

Hatcher & Hatcher, for plaintiff in error.

W. D. Crawford, W. B. Short, contra.

5. The special damages were laid in the sum of $512.75; and there being some evidence to authorize not only a recovery of these items in full, but the allowance of additional damages under the provisions of the Civil Code (1910), §4503, the verdict for $537.75 cannot be held to be excessive.

6. When the verdict was first published, finding “for the plaintiff $512.75 for damages, also . . for punitive damages $25.00,” the court, upon motion of the plaintiff, instructed the jury to retire and “consolidate the amount found by their verdict in a round sum, and so write their verdict and return it into court.” The jury retired and returned with a verdict for $537’.75, in a single sum. The defendant objected to this procedure, and insisted that the verdict as originally read and published should not be altered; “that the verdict as originally returned showed that the jury had considered and adjudged punitive damages for the plaintiff,” which the defendant “contended was not involved and did not form an element of damages under the evidence of the case.” Error is assigned upon the action of the court in overruling these objections. Held, that the verdict as finally returned did not enlarge the plaintiff’s recovery, nor include in its original form any element of recovery unwarranted by the evidence. The defendant was therefore in no way prejudiced.

7. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    14391.
    Brenard Manufacturing Co. v. Winn-Wilkes Drug Co.
   Bell, J.

This was an action upon promissory notes. It was shown in the defendant’s answer that the notes had been given as the purchase price of certain musical instruments purchased for resale, and it was pleaded that the plaintiff had breached its agreement made in writing as a part of the contract of sale, in that it “did entirely fail to take up correspondence with the fifty persons whose names and addresses were given them under the terms of said contract; did entirely fail to send appropriate advertising matter to the persons whose names and addresses were sent them by the defendants under the terms of said contract,” a copy of which was attached to the answer. The execution and delivery of the notes were admitted. On the trial the defendants offered in evidence a printed unsigned copy of the contract pleaded, one of the defendants testifying in connection therewith: “There was an original contract. This is not the original contract between me and the plaintiff touching the matter in question. There was an original which I myself [signed?] at the time signed the notes sued on. The original was retained by the plaintiff’s agent who turned this copy over to me.” No notice was given to the plaintiff to produce the original. The court refused to admit this instrument in evidence. Other evidence of the defendants tended to show that the alleged contract (assuming its existence) had been breached as pleaded, but no proof whatever was submitted illustrative of the extent of the defendants’ damage resulting from the breach. The presiding judge, sitting as court and jury, entered a finding and judgment in favor of the plaintiff for the amount of the notes, with interest. Defendants made a motion for a new trial, containing, besides the general grounds, a special assignment of error upon the rejection from evidence of the document above -mentioned. A new trial was granted and the plaintiff excepted to that judgment. Held:

Decided November 23, 1923.

Complaint; from city court of Thomasville—Judge Hammond. January 20, 1923.

J. B. Craigmiles, W. I. McIntyre, for plaintiff.

Bidón L. Joiner, for defendant.

1. “Whenever one party to a case claims special damages against the other, he has the burden not only of showing that he has been damaged as alleged, but also of furnishing to the jury data sufficient to enable them to estimate with reasonable certainty the amount of the damages.” National Refrigerator &c. Co. v. Parmalee, 9 Ga. App. 725 (1) (72 S. E. 191).

2. Evidence which in itself indicates the existence and accessibility of other and better proof is inadmissible. Civil Code (1910), §§ 5750, 5752. The .unsigned copy of the existing original contract was properly excluded, and the special assignment in the motion for a new trial complaining of that ruling afforded no reason for the grant of a new trial; but even if the instrument had been admissible and admitted, a finding in favor of the plaintiff would still have been demanded under the rule set forth in the preceding paragraph.

(a) The defendant’s answer also alleged that “the plaintiff refused to receive back the articles received by the defendants under said contract,” but, irrespective of whether rescission was sufficiently pleaded or was an available remedy, there was no evidence on the subject.

3. Where, upon a trial in which no evidence is illegally excluded, the evidence demands the verdict as returned or the finding as made, the grant of a new trial is erroneous. This is also true if evidence is excluded which would appear to be admissible at the time it was offered, provided the evidence admitted with that so excluded would still as a matter of 'law demand the particular result reached.

Judgment reversed.

Jenldns, P. J., and Stephens, J., concur.


text:
    14528.
    Wilcox v. Citizens Banking Company.
   Jenkins, P. J.

The bank by action of trover sought the recovery of two promissory notes. The defendant in his answer claimed title to the papers, and alleged “that the plaintiff has no interest or claim to the same.” Prom the uncontroverted evidence, it appears that the defendant, in making a $600 payment on the notes, drew a draft for that amount on another bank, that the notes pinned to the draft went to the drawee bank, and on payment of the draft the notes were delivered by it, with his monthly statement, to the defendant, who retained them in possession under a claim of title thereto. The issue was whether the defendant, as he testified, had actually made to the plaintiff bank a cash payment, additional to the amount of the draft, sufficient to pay the notes and entitle him to their possession or cancellation, or whether, as the bank’s witness testified, such cash payment had not been made, and the notes had been sent, pinned to the draft, to the drawee bank by the mistake of an agent of the plaintiff bank. The jury found for the plaintiff. In instructing the jury the court failed to charge the law of conversion, but in effect charged that the sole issue rvas whether or not the defendant had made the disputed additional cash payment to the plaintiff bank, so as to entitle defendant to the possession and ownership of the notes. The defendant, in his motion for new trial, complains of this alleged error. Held:

1. “Where a defendant in an action of trover admits in his plea or answer his possession of the property at the time of the action, under an adverse claim of title or right of possession, it is not necessary for the plaintiff to prove a demand and refusal or any other conversion of the property.” Smith v. Commercial Credit Co., 28 Ga. App. 403 (1) (111 S. E. 821), and cases cited.

2. In an action of trover, “ proof of a demand and a refusal is only required as evidence of the conversion; and where the conversion is shown by other evidence, such proof is not essential. . . Any distinct act of dominion wrongfully asserted over another’s property in denial of his right, or inconsistent with it, is a conversion.” Beasley v. Central of Ga. Ry. Co., 29 Ga. App. 584 (1, 2) (116 S. E. 227); Evans v. Grier, 29 Ga. App. 426 (115 S. E. 596). “As to what constitutes a conversion, this court has repeatedly held that possession, with a claim of title adverse to that of the true owner, is sufficient.” Maxwell v. Harrison, 8 Ga. 61 (6) (52 Am. Dec. 385); Civil Code (1910), § 4483; Young v. Durham, 15 Ga. App. 678 (5) (84 S. E. 165).

3. It is undisputed that the defendant, upon receipt of the notes from the drawee bank, held and retained them in his possession under a claim of ownership which is set up by his plea and supported by his evidence. While he denied in his testimony that the plaintiff bank had ever made a demand upon him, he admitted that its cashier had requested him to bring the notes to the bank and let the cashier see them, and that he refused to do so or to show the notes to such officer except at the defendant’s residence. The pleadings and the evidence thus establishing without dispute a conversion, except under the defendant’s theory of ownership acquired by virtue of the additional cash payment contended for, there was no ei'ror prejudicial to the defendant in failing to charge the law of conversion, or in limiting the jury to the one essential issue in dispute.

Decided November 23, 1923.

Trover; from Pulaski superior court—Judge Graham. March 3, 1923.

H. F. Lawson, for plaintiff in error.

J. H. Roberts, H. E. Coates, contra.

Judgment affw-med.

Stephens and Bell, JJ., concur.


text:
    14537.
    Haupt v. Horovitz.
   Jenkins, P. J.

1. “An action for money had and received lies in all cases where another has received money which the plaintiff, ex aequo et bono, is entitled to recover and which the defendant is not entitled in good conscience to retain.” Zapf Realty Co. v. Brown, 26 Ga. App. 443 (106 S. E. 748); Whitehead v. Peek, 1 Ga. 140 (3); Knight v. Roberts, 17 Ga. App. 527 (87 S. E. 809). In such an action “the law implies a promise on the part of any person who has received the money of another to pay that person on demand. The reception of money by one and the demand by" the other makes all the privity that is necessary to maintain this action.” Central R. v. First Nat. Bank, 73 Ga. 383 (2 a), 385; Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212 (2), 218 (33 S. E. 175). “It is immaterial how the money may have come into the defendant’s hands, and the fact that it was received from a third person will not affect his liability, if, in equity and good conscience, he is not entitled to hold it against the true owner.” Citizens Bank v. Rudisill, 4 Ga. App. 37 (2), 41 (60 S. E. 818, 820); 27 Cyc. 864, 857; 2 Rul. Case Law, 778.

2. In the instant suit for money had and received, the plaintiff alleges that the money was delivered to the defendant real-estate broker’s agent, who in turn paid it over to the defendant, in a transaction for the sale of property, which the defendant claimed he was authorized to sell, but which in fact he was not authorized to sell, and which he was unable to deliver. The action cannot, however, be maintained upon the theory that the person to whom the plaintiff directly paid the money was the defendant’s agent, since the writings attached to the petition as exhibits show that the allegations of the petition as to such agency were not true, and that the defendant merely bound himself, as authorized broker of the owner, to sell the property to the one to whom the money was paid by the plaintiff in his attempted purchase from the latter. See Kenney v. Walden, 28 Ga. App. 810 (113 S. E. 61). But since the allegations of the petition further show that the plaintiff, in thus paying the money, “dealt with” the defendant as well as with the person to whom the money was paid, that in furtherance of this plan of purchase the defendant actually received the money .of the plaintiff, knowing that he was not entitled to receive and hold it, for the reason that he as a real-estate broker had no right to sell the property in question, and that on demand he refused to deliver the amount to the plaintiff, the action for the money had and received was maintainable on the theory of the defendant’s implied promise to pay the same, without any further privity of contract being shown.

Decided November 23, 1923.

Complaint; from city court of Savannah—Judge Freeman. March 31, 1923.

II. P. Qobb, for plaintiff in error.

Aaron Kravitch,, contra.

3. It was not necessary to allege that the plaintiff had made a tender of the full purchase price, to obtain a deed to the property in question, as a condition precedent to his right of action, since the petition charges that the defendant was unauthorized to make such a deed, and a tender would have been altogether fruitless.

4. The general demurrer to the petition was properly overruled. Such of the grounds of special demurrer insisted upon as were not sustained by the trial court are met by the foregoing rulings.

Judgment affirmed.

Stephens and Bell, JJ., concur.