text:
    17393.
    Collins v. The State.
    Criminal Law, 17 C. J. p. 250, n. 13; p. 252, n. 17; p. 271, n. 41.
    Decided July 13, 1926.
    Violating liquor law; from city court of Metter—Judge Lanier. April 2, 1926.

      C. W. Turner, H. H. Elders, for plaintiff in error.

      L. 0. Anderson, solicitor, contra.
   Luke, J.

Collins was convicted of knowingly permitting and allowing an apparatus for the manufacturing of alcoholic and intoxicating liquors to be located on his premises. The evidence amply authorized his conviction, which conviction has the approval of the trial judge; and the special grounds of the motion for a new trial, which assail the conviction of the defendant as illegal upon the ground of the relationship of a juror to one alleged to be an undisclosed prosecutor, and upon the ruling of the court on the admissibility of testimony, and the further ground of newly discovered evidence, do not show reversible error. Eor no reason pointed out did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Blood-worth, J., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    17399.
    Hammond v. The State.
    Criminal Law, 16 C. J. p. 977, n. 45; p. 1058, n. 32; 17 C. J. p. 181, n. 38; p. 183, n. 64; p. 271, n. 41.
    Indictments and Information, 31 O. J. p. 820, n. 40; p. 874, n. 88.
    Decided July 13, 1926.
    Bastardy; from city court of Brunswick—Judge Butts. March 24, 1926.

      Henry 0. Farr, Joseph B. Hand, for plaintiff in error.

      F. M. Scarlett, solicitor, contra.
   Bloodworth, J.

1. Tlie court committed no error when the demurrers to the accusation’ were overruled. There was no special demurrer raising the point that the date named in the accusation as the time of the commission of the offense was subsequent to the date of the accusation. Grimes v. State, 32 Ga. App. 541 (3) (123 S. E. 918).

2. The excerpt from the charge of which complaint is made in the amendment to the motion for a new trial shows no reversible error.

3. “The evidence in support of the defense of alibi was not of such clear and strong probative value as to require a charge upon the law of alibi, especially in the absence of a timely and appropriate written request therefor. See, in this connection, Paulk v. Stale, 8 Ga. App. 704 (70 S. E. 50).” Throckmorton v. State, 23 Ga. App. 112 (3) (97 S. E. 664) ; Smith v. State, 6 Ga. App. 577 (65 S. E. 300).

4. The 2d headnote in the case of McBurnette v. Huff, 154 Ga. 452 (114 S. E. 578), is as follows: “An assignment of error complaining of the admission of documentary evidence over objection urged at the time it was admitted should set forth literally or in substance the evidence objected to, or identify it as an exhibit attached and made a part of the bill of exceptions. If it fails to do either, the assignment of error will not present any question for consideration. Bacon v. Howard, 152 Ga. 616 (2) (110 S. E. 888); Callaway v. Beauchamp, 140 Ga. 207 (2) (78 S. E. 846).” See also McCollum v. Thomason, 32 Ga. App. 160 (8) (122 S. E. 800); Webb v. State, 13 Ga. App. 733 (4) (80 S. E. 14). The above ruling disposes of special ground 4 of the motion for a new trial.

5. The evidence supports the verdict, which has the approval of the judge who tried the case; and the judgment is

Affirmed.

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


author: Luke, J.'

text:
    17401.
    Mayfield v. The State.
    Criminal Law, 17 C. J. p. 129, n. 78.
   Luke, J.'

It not appearing from the bill of exceptions and the record that ,the bill of exceptions was tendered the judge within 20 days of the judgment complained of (the overruling of the petition for certiorari), this court is without jurisdiction to entertain the case. See Mansfield v. State, 94 Ga. 74.

Decided July 13, 1926.

Certiorari; from Fulton superior court—Judge E. D. Thomas. March 18, 1926.

Swift Tyler Jr., Morris Macks, for plaintiff in error.

John A. Boykm, solicitor-general, Boy Dorsey, solicitor, J. W. LeCraw, contra.

Writ of error dismissed.

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


text:
    17404.
    TYRE v. THE STATE.
    The ground of the motion for new trial for newly discovered evidence of relationship between juror and prosecutor was not supported by legally sufficient showing.
    Oriminal Law, 16 C. J. p. 1218, n. 59; p. 1230, n. 66; 17 O. J. p. 290, n. 21.
    Decided July 13, 1926.
    Possessing intoxicating liquor; from city court of Baxley—Judge Speer. April 19, 1926.

      H. L. Williams, for plaintiff in error.

      Wade H. Watson, solicitor, contra.
   Bloodworth, J.

The only special ground of the motion for a new trial is based upon the alleged relationship, within the prohibited degrees, of the prosecutor and one of the jurors who tried the case. This ground alleges that neither the accused nor his attorney knew of said relationship prior to the trial of the case, nor could either “have discovered the same sooner by the exercise of reasonable diligence.” In Wheeler v. Salinger, 33 Ga. App. 300 (9) (125 S. E. 888), this court held: “A bare recital in the affidavit of the movant or his counsel that the newly discovered evidence offered 'could not have been discovered by the exercise of ordinary care’ is but a mere conclusion, without a disclosure of the facts upon which such conclusion is based, and the trial judge is not bound to conclude that the affiant had exercised the required diligence. Taylor v. State, 132 Ga. 235, 237 (63 S. E. 1116); Patterson v. Collier, 77 Ga. 292 (3 S. E. 119); Evans v. Grier, 29 Ga. App. 426 (3) (115 S. E. 921); Holder v. Farmers Exchange Bank, 30 Ga. App. 400 (6, 7) (118 S. E. 467).” The 6th headnote in Ivey v. State, 154 Ga. 63 (113 S. E. 175), is as follows: “An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the names of his associates, a statement that he keeps good company not being sufficient to meet this requirement, which is necessary to enable the prosecution to make a counter-showing; and where such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by refusing to grant a new trial on this ground.” See Carter v. State, 34 Ga. App. 581 (2) (129 S. E. 798). Under the foregoing rulings this court will not say that the judge who tried the case abused his discretion by refusing to grant a new trial on the special ground. Moreover, in the case now under consideration the evidénce demanded the verdict; and where this is true “the fact that one of the jurors who tried the case was related to one of the parties within the prohibited degrees will not require a new trial.” Frazier v. Swain, 147 Ga. 654 (3) (95 S. E. 211).

Judgment affirmed.

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


text:
    17412.
    Thornton v. The State.
    Criminal Law, 16 C. J. p. 878, n. 35; p. 1157, n. 72; p. 1158, n. 73.
    Decided July 13, 1926.
    Possessing intoxicating liquor; from Elbert superior court— Judge W. L. Hodges. April 23, 1926.
   Bloodworth, J.

1. Certain testimony which consisted of several sentences was objected to en bloc, and at least a portion of it was admissible. “Where evidence is offered and objected to, and a portion thereof is admissible and a part objectionable, unless the illegal portion is specified and properly objected to, the whole will be admitted.” City of Atlanta v. Sciple, 19 Ga. App. 694 (3), 698 (92 S. E. 28), and cit. The foregoing ruling disposes of the first special ground of the motion for a new trial.

2. The fact that three of the jurors were members of the grand jury that found the bill against the accused is not cause for a new trial. The accused and his counsel, by the exercise of due diligence, could have discovered this fact before the jury was impaneled. Cason v. State, 23 Ga. App. 540 (5) (99 S. E. 61) ; Jones v. State, 95 Ga. 497 (20 S. E. 211).

3. The verdict was abundantly supported by the evidence.

Judgment affirmed.

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

J. T. Sisk, for plaintiff in error.

A. S. Skelton, solicitor-general, contra.


author: Luke, J.

text:
    17417.
    SPIVEY v. THE STATE.
    The verdict being authorized by evidence and approved by the trial judge, the refusal of a new trial will not be reversed.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Intoxicating Liquors, 33 C. J. p. 777, n. 62; p. 790, n. 17.
    Decided July 13, 1926.
    Making intoxicating liquor; from Putnam, superior court— Judge Park. May 10, 1926.

      B. G. Jenkins, for plaintiff in error.

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

Spivey was convicted of violating the prohibition law, and his case is here upon the usual general grounds. The jury from the evidence were authorized to find that the defendant, with several others, was present at about 10 o’clock at night where there were about three thousand gallons of beer, about one barrel of whisky, and a sixty-gallon copper still outfit in operation. The defendant was laughing and talking with the others; and during the few minutes that the officers before mailing the raid saw the persons present and the still in operation, no one was performing any physical labor, except one person split a little wood. When the officers approached, the parties present discovered them, and all made an effort to get away, and some did actually get away, but the defendant Spivey was apprehended. He stated to the officers that he just went by to get a drink; and in his statement to the jury he said that he was suffering from heart trouble, that he had just been there about five minutes, that he knew nothing about the still and didn’t fool with stills, that he just saw a light and stopped where the others were talking and took up a little time; that he didn’t fool with liquor and could not stand it. From this evidence we can not say that the defendant’s conviction was without any evidence to support it. It was for the jury to say whether the defendant satisfactorily explained his presence at this large distilling plant at 10 o’clock at night, from which he undertook to flee when the officers made the raid. The trial judge having approved the verdict; and there being some evidence to authorize it, the judgment overruling the motion for a new trial will not be disturbed. See, in this connection, Yonce v. State, 29 Ga. App. 173 (114 S. E. 584); Alsabrook v. State, post, 592.

Judgment afk'med.

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


author: Bloodwobth, J.

text:
    17418.
    Sterling v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided July 13, 1926.
    Possessing intoxicating liquor; from Douglas superior court-judge Irwin. May 3, 1926.

      Astor Merritt, for plaintiff in error.

      E. S. Griffith, solicitor-general, contra.
   Bloodwobth, J.

There is no merit in either of the special grounds of the motion for a new trial. The evidence to support the verdict is ample; and the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, O. J., and hulee, J., oonew'.


text:
    17421.
    Keever v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. .). p.-252, n. 17.
    Decided July 13, 1926.
    Selling intoxicating liquor; from Bartow superior court—Judge Tarver. April 19, 1926.

      J. B. Whitaher, for plaintiff in error.

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

The conviction was authorized; and none of the special grounds of the motion for a new trial, which include grounds as to newly dis: covered evidence, warrants a reversal of the judgment overruling liis motion for a new trial.

Judgment affirmed.

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


text:
    17422.
    Mathis v. The State.
    Criminal Law, 16 C. J. p. 1058, n. 37; p. 1059, n. 42; p. 1061, n. 61.
    Decided July 13, 1926.
    Making intoxicating liquor; from Bartow superior court-judge Tarver. April 19, 1926.

      J. JR. Whitaker, for plaintiff in error.

      G. G. Pittman, solicitor-general, contra.
   Bloodworth, J.

1. Complaint is made of the following excerpt from the charge of the court: “The law presumes him [the defendant] to be -innocent until the contrary appears by proof which satisfies your minds beyond reasonable doubt as to his guilt; a reasonable doubt being such a doubt as an honest juror would have in a search after the truth.” In the absence of a timely and appropriate written request for fuller instructions, the foregoing charge Sufficiently informed the jury that the burden was on the State to prove the defendant guilty “beyond a reasonable doubt,” and that the defendant “entered upon the trial with the presumption of innocence in his favor.”' Pullen v. State, 30 Ga. App. 24 (2) (116 S. E. 871), and cit.

2. In the absence of a timely and legal request therefor, it is not reversible error for the court to fail to instruct the jury “with reference to the conflicts in the evidence and the credibility of the witnesses.” Dunn v. State, 32 Ga. App. 491 (2) (123 S. E. 905) ; Wyatt v. State, 27 Ga. App. 45 (2) (107 S. E. 417).

3. The verdict is not without evidence to support it.

Judgment affirmed.

Broyles, O. J., and Luke, J., ooneur.


text:
    17424.
    Pratt v. City of Macon.
    Licenses, 37 C. J. p. 222, n. 19, 39; p. 237, n. 19.
   Luke, J.

Where a person operating his business on his own place, located in Bibb County, and without the limits of the City of Macon, and engaged in selling mineral water drawn and bottled from a well on said place to parties both without and within the State of Georgia, delivers such water on orders to customers within the limits of said city on a truck; and where an ordinance of said city provides as follows: “No delivery-wagon tag shall be sold or issued to any person not a licensed dealer doing business within the city limits. Merchants or others doing business outside the city limits, delivering goods in the city, must take out dray license for each wagon so used.” Held:

1. That said mineral water was not a farm product within the meaning of section 1851 of the Code of 1910/ and that the requirement of said ordinance as to taking out a license was applicable to plaintiff in error.

2. That the fact that plaintiff in error drew and bottled said water from a well located on his own land, and that he was also engaged in raising truck, chickens and ducks, which were also delivered by means of said truck, did not relieve him. from procuring the “dray” or occupation license as required by said ordinance.

Decided July 13, 1926.

Certiorari; from Bibb superior court—Judge Malcolm D. Jones. April 27, 1936.

J. M. Hancock, for plaintiff in error.

Harry S. Sirozier, Grady Gillon> contra.

3. That the conviction of plaintiff in error in- the recorder’s court of the City of Macon was sustained by the evidence; and that the judgment of the court sustaining the finding of the recorder and overruling the certiorari was correct. The conclusion reached in this case is sustained by the reasoning in Davis v. Macon, 64 Ga. 128 (37 Am. R. 60). In the case of Gunn v. Macon, 84 Ga. 365 (10 S. E. 972), the court stated in substance that had Gunn carried on a regular business of selling wood in the city he would have been subject to the license tax. The decision in the Gunn casé does not conflict with our decision in this ease.

Judgment affirmed.

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


text:
    17426.
    Mercier v. The State.
    Criminal Law, 16 C. J. p. 1050, n. 84; p. 1180, n. 74.
    Decided July 13, 1926.
    Larceny after trust; from Wilkes superior court—Judge Perry-man. April 10, 1936.

      Hugh E. Combs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Bloodwobth, J.

When read in connection with the remainder of the charge, the excerpt therefrom which is complained of in the motion for a new trial shows no reversible error. The evidence supports the verdict, and the motion was properly overruled.

Judgment affirmed.

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


text:
    17431.
    Toney v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54; p. 766, n. 78.
   Luke, J.

The conviction in this case was dependent wholly and entirely upon circumstantial evidence; and while the evidence raised a suspicion against the defendant, it was not sufficient to exclude every reasonable hypothesis other than that of his guilt. The court erred in overruling the petition for certiorari.

Decided July 13, 1926.

Certiorari; from Fulton superior court—Judge Humphries. April 16, 1926.

0. G. Battle, for plaintiff in error.

Boy Dorsey, solicitor, John A. Boyhm, solicitor-general, J. W. LeCraw, contra.

Judgment reversed.

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


text:
    17437.
    Crawford v. The State.
    Criminal Law, 16 C. J. p. 562, n. 7; 17 C. J. p. 255, n. 54; p. 317, n. 10.
    Decided July 13, 1926.
    Making intoxicating liquor; from Bartow superior court—Judge Tarver. April 19, 1926.

      Finley & Henson, J. M. Lang, for plaintiff in error.

      G. G. Pittman, solicitor-general, contra.
   Bloodwobth, J.

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

2. For no reason alleged are the excerpts from the charge of which complaint is made in grounds 4, .5, and 6 of the amendment to the motion for a new trial erroneous.

3. The evidence to which objection is made in special ground 7 of the motion for a new trial is both material and relevant, and is not inadmissible because prejudicial. Cowart v. State, 30 Ga. App. 289 (117 S. E. 663).

4. The evidence set out in ground 8 of the motion for a new trial; even if it be conceded that “the same was not admissible,” is not of such probative force that its admission could have injured the cause of plaintiff in error.

5. This being the prosecution of an accessory before the fact, the indictment, the verdict, and the sentence of the principal were properly admitted in evidence.

6. There was ample evidence to support the verdict.

Judgment affirmed.

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


author: Bboyles, C. J.

text:
    16191.
    Ætna Insurance Company v. Goldman.
    Appeal and Error, 4 C. J. p. 858, n. 3; p. 1248, n. 48 New.
    Fire Insurance, 26 C. J. p. 252, n. 88; p. 254, n. 16, 17.
    Decided July 14, 1926.
    Complaint on fire policy; from Warren superior court—Judge Shurley. December 8, 1934.
    Application for certiorari was made to the Supreme Court.

      Smith, Hammond & Smith, J. M. B. Bloodworth, M. L. Felts, for plaintiff in error. L. D. McGregor, contra.
   Bboyles, C. J.

1. “A fire-insurance policy on a stock of goods contained a clause wliich provided that the policy should be void unless the insured ‘will take a complete itemized inventory of stock on hand at least once in each calendar year; and unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within 30 days of issuance of this policy.’ Held, that an inventory made by the insured within the time limited in the contract, which states in separate items the quantities of various kinds and assortments of goods and the prices thereof and the amounts which such prices aggregate, is a sufficient compliance with the contract requiring an inventory, to prevent forfeiture of the insurance, without stating expressly that the separate items of goods were of a specified ‘actual value’ at the time the inventory was taken.” Goldman v. Ætna Insurance Co., 162 Ga. (133 S. E. 741).

2. “It is a sufficient compliance with the usual ‘iron-safe clause’ of a fire policy, in respect to the keeping of books, if from the books kept by the insured, with the assistance of those who understand the- system on which they were kept, the amount of purchases and the amount of sales can be ascertained, and cash transactions distinguished from those on credit.” Ætna Insurance Co. v. Lipsitz, 130 Ga. 170 (2) (60 S. E. 531, 14 Ann. Cas. 1070).

3. Under the above-stated rulings and the facts of the instant case, there was a sufficient compliance by the assured with the provisions of the “iron-safe clause” of the fire-insurance policy.

4. The other questions of fact (the evidence being conflicting) were settled by the verdict of the jury. ‘The verdict was authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment below. The former judgment of this court reversing the judgment of the trial court (33 Ga. App. 715, 128 S. E. 13) having been reversed by the Supreme Court, that judgment is hereby ordered vacated, and the judgment of the trial court is Affirmed.

Luke and Bloodworth, JJ., concur.


author: Bboxles, C. J.

text:
    17354.
    Johnson v. Lock.
    Appeal and Error, 3 C. J. p. 355, n. 57.
    Decided July 14, 1926.
    Lien foreclosure, etc.; from city court of Dublin—Judge Bid-good. April 16, 1926.

      W. A. Dampier, for plaintiff in error. M. H. Blackshear, contra.
   Bboxles, C. J.

Where two cases were consolidated for trial, and separate verdicts and judgments thereon were rendered, and a direct exception to the verdicts and judgments was taken in a single bill of exceptions sued out by the losing party, the writ of error can not be entertained by this court. Askew v. Powell, 30 Ga. App. 244 (117 S. E. 769), and cit.

Writ of error dismissed.

Luke cmd Bloodworih, JJ., concur.


text:
    17358.
    Dill v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74; p. 1202, n. 70.
    Decided July 14, 1926.
    Larceny of cotton; from city court of Polk county—Judge Tison. February 16, 1926.

      Mundy & Watkins, for plaintiff in error.

      J. A. Wright, solicitor, contra.
   Bboyles, C. J.

1. The judge did not err in overruling the grounds of the motion for a new trial based upon alleged newly discovered evidence, as the evidence was impeaching in its character, and there was also a counter-showing .(as to some of this evidence) by the State.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17360.
    Carroll et al., administrators, v. Burns & Garrison.
    Appeal and Error, 3 C. J. p. 978, n. 37.
    Trial, 38 Cyc. p. 1567, n. 84.
   Bboyles, C. J.

1. Grounds 4, 5, 8, 9, and 10 of the motion for a new trial, complaining of the admission of documentary evidence, can not be considered by this court, since the evidence is not set out in the grounds nor attached as exhibits thereto.

2. There is no merit in the remaining special grounds of the motion for a new trial. These grounds complain of the direction of a verdict for the plaintiffs. The evidence adduced by the plaintiffs, which was all the evidence in the case, demanded the verdict directed; and the refusal to grant a new trial was not error.

Decided July 14, 1926.

Complaint; from Habersham superior court—Judge J. B. Jones. December 4, 1925.

J. C. & H. E. Edwa/rds, for plaintiffs in error.

I. H. Button, contra.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17361.
    Sea Island Cotton Gin Co. v. Fowler.
    Sales, 35 Cyc. p. 539, n. 64; p. 540, n. 65.
    Decided July 14, 1926.
    Complaint; from Treutlen superior court—Judge Strange. April 3, 1926.

      M. B. Calhoun, for plaintiff. N. L. Gillis Jr., for defendant.
   Luke, J.

The Sea Island Cotton Gin Co. sued Eowler on two promissory notes for $120 each, given for the balance due on the purchase-price of a cotton gin. The defendant pleaded total failure of consideration, and sought the return of the cash payment made on said gin. The jury returned a verdict in favor of the defendant. Upon the authority of Hardee v. Carter, 94 Ga. 482 (19 S. E. 715), and Stimpson Specialty Co. v. Parker, 10 Ga. App. 295 (73 S. E. 412), the court erred in overruling the motion for a new trial.

Judgment reversed.

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


author: Bkoyles, C. J.

text:
    17368.
    Penick v. The State.
    Larceny, 36 C. J. p. 810, n. 3.
    Decided July 14, 1926.
    Larceny after trust; from Morgan superior court—Judge Park. April 2, 1926.

      Anderson & Wood, Allen & Pottle, for plaintiff in error.

      Joseph B. Duhe, solicitor-general, contra.
   Bkoyles, C. J.

The indictment in this case was drawn under section 192 of the Penal Code of 1910, and contained every essential averment required by that section. The demurrer to the indictment was properly overruled.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17369.
    Bowick v. The State.
    Homicide, 30 C. J. p. 376, n. 66.
    Decided July 14, 1926.
    Shooting at another; from Ware superior court—Judge Beed. February 20, 1926.

      Wilson, Bennett & Pedriclc, for plaintiff in error.

      A. B. Spence, solicitor-general, contra.
   Luke, J.

1. Where one charged with the offense of assault with intent to murder by shooting another supports in part, by the sworn testimony and by his statement, the defense that at the time of the shooting the person shot had unlawfully assaulted him and had him down upon an automobile seat, choking him, manifestly intending and endeavoring, as he believed, to choke him to death, and that he shot only to prevent such threatened homicide, evidence showing disparity in the size and strength of the two, the defendant weighing one hundred and sixty pounds and the person shot weighing two hundred and eighty pounds, in connection with the other facts and circumstances which were such as to authorize a finding by the jury that the fears of the defendant that his life was in danger were the fears of a reasonable man, it was error for the court to restrict the defense of justification (Penal Code, § 70) for such shooting to the prevention of a “like or similar assault” upon the defendant by the person shot. The failure of the court to instruct the jury as to the doctrine of reasonable fears, as here complained of, is such error as to require the grant of a new trial.

2. The other errors assigned are either without merit or are such as will not likely recur upon another trial. For the reason pointed out the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., ooneur.


author: Broyles, C. J.

text:
    17372.
    Turner v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided July 14, 1926.
    Carrying concealed pistol; from city court of Way cross—Judge Crawley. February 20, 1926.
    I. J. Bussell, for plaintiff in error.

      W. 0. Parker, solicitor, contra.
   Broyles, C. J.

The motion for a new trial was based upon the usual general grounds only. The evidence adduced, together with the legal inferences and deductions therefrom, amply authorized the verdict, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., eonour.


text:
    17378.
    Marshall v. The State.
    Criminal Law, 16 C. J. p. 1107, n. 28; p. 1108, n. 37; p. 1180, n. 74.
    Decided July 14, 1926.
    Rehearing denied August 4, 1926.
    Violating liquor law; from city court of Macon—Judge Hall. April 9, 1926.

      Bari W. Butler, for plaintiff in error.

      Boy W. Moore, solicitor, contra.
   Broyles, C. J.

1. The accused'was tried under an accusation containing two counts. The first count charged the sale of whisky, and the second count charged the possession of whisky. Both counts alleged the same date, and upon the trial the same evidence was relied upon to convict under both counts. The jury returned a verdict of “guilty on the first count.” The verdict was silent as to the second count. Held, that the verdict was not void for repugnancy. Boyd v. State, 156 Ga. 48 (118 S. E. 705), and cit.

2. The verdict was amply authorized, if not demanded, by the evidence, and none of the grounds of the amendment to the motion for a new trial show cause for another trial.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    17385.
    Aaron v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided July 14, 1926.
    Possessing intoxicating liquor; from Toombs superior court-judge Hardeman. March 23, 1926.

      Corbitt & Pope, for plaintiff in error.

      Walter F. Grey, solicitor-general, G. W. Lankford, contra.
   Broyles, C. J.

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

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Beoyles, C. J.

text:
    17388.
    Ruis v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided July 14, 1926.
    Larceny; from city court of Alma—Judge Tuten. March 13, 1926.

      H. L. Gmsey, for plaintiff in error.

      Q. A. Williams, solicitor, contra.
   Beoyles, C. J.

The evidence, while circumstantial, was sufficient to exclude every reasonable hypothesis except that of the defendant’s guilt. The refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Blood/coorih, JJ., eoneur.


text:
    17400.
    Hogan v. The State.
    Criminal Law, 16 C. J. p.-1157, n. 62.
    Juries, 35 C. J. p. 417, n. 22 New.
    Decided July 14, 1926.
    Violating liquor law; from Twiggs superior court—Judge Camp. April 17, 1926.

      E. F. Griffin Jr., J. D. Shannon, for plaintiff in error.

      Fred. Kea, solicitor-general, contra.
   Beoyles, C. J.

1. That.one of the jurors who tried the defendant was under 21 years of age, and that his name was not in the jury-box of the county, is not ground for a new trial. Causes of challenge propter defectum to a juror must be discovered and urged before the verdict is returned. Henderson v. Fox, 83 Ga. 233 (7) (9 S. E. 839).

2. The verdict was authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial show error.

Judgment affirmed.

Luke and Bloodworih, JJ., eonour.


author: Beoyles, O. J.

text:
    17410.
    Scott v. The State.
    Assault and Battery, 5 C. J. p. 764, n. 83.
    Decided July 14, 1926.
   Beoyles, O. J.

“That an accusation in a city court charged the defendant with an assault, without specifying any act or acts constituting the same, is not good ground of arresting judgment.” Rataree v. State, 62 Ga. 245; Johnson v. State, 90 Ga. 441, 444 (16 S. E. 92).

Judgment affirmed.

Luke and Bloodworth, JJ., eonour.

Assault; from city court of Wrightsville—Judge Blount. May 15, 1926.

Q. S. Claxion, for plaintiff in error.

J. Roy Rowland, solicitor, contra.


text:
    17411. 17425.
    Simpson v. The State. Hill v. The State.
    Larceny, 36 C. J. p. 852, n. 40.
    Decided July 14, 1926.
    Larceny from house; from Wilkes superior court—Judge Perry-man. April 10, 1926.

      H. R. Combs, W. A. Slaton, for plaintiffs in error.

      M. L. Felts, solicitor-general, contra.
   Luke, J.

Alex. Simpson and Duncan Hill were, in a single indictment, charged with the offense of larceny from the house, the indictment alleging that they fraudulently and privately took and carried away 200 bushels of “short staple cottonseed.” They were tried separately, and in each case the State failed to prove that the seed alleged to have been stolen were “short staple.” This was a fatal variance. “In order to sustain a conviction of larceny the evidence must make out the description of the stolen property as laid in the indictment or accusation, although such description may have been unnecessarily minute.” McLendon v. State, 121 Ga. 158 (48 S. E. 902), and cit.; Hardy v. State, 112 Ga. 18 (37 S. E. 95).

Judgments reversed.

Broyles, Q. J., and Bloodworili, J., concur.


author: Bboyles, O. J.

text:
    17416.
    Alsabrook v. The State.
    Intoxicating Liquors, 33 O. J. p. 758, n. 80; p. 777, n. 62; p. 790, n. 17.
   Bboyles, O. J.

Presence of a person at a distillery when whisky is actually being made, and his flight, or attempted flight, on seeing an officer approaching, may, when not satisfactorily explained, authorize a jury to find him guilty of manufacturing whisky. Whether an attempted explanation of such presence and conduct is reasonable and satisfactory is a question for the jury. Lindsay v. State, 32 Ga. App. 74 (3) (122 S. E. 649), and cit. In the instant ease the accused, with several other persons, was at a whisky distillery when it was in operation. There was some evidence that all the persons, including the accused, attempted to escape when the officers approached the distillery. The accused was the only white man at the distillery, which was a 60-gallon copper outfit. In the defendant’s statement to the jury he attempted to explain his presence at the distillery, but gave no reason for his attempted flight— which he did not deny. Nor did he deny having any interest in, or any connection with, the distillery. This court can not hold, as a matter of law, that the denial of a new trial was error.

Decided July 14, 1926.

Rehearing denied August 4, 1926.

Making intoxicating liquor; from Putnam superior court-judge Park. May 10, 1926.

Application for certiorari was made to the Supreme Court.

B. G. Jenkins, for plaintiff in error.

Joseph B. Duke, solicitor-general, contra.

Judgment affirmed.

Luhe and Bloodworth, JJ., eoneur.


text:
    17419, 17420.
    Maples v. The State.
    Criminal Law, 17 C. J. p. 212, n. 18.
    Decided July 14, 1926.
    Profane language, etc.; from Miller superior court—Judge Yeomans. March 29, 1926.

      P. Z. Geer, for plaintiff in error.

      B. T. Gastellow, solicitor-general, B. B. Arnold, E. G. Bill, contra.
   Bboyles, C. J.

1. The amendment to the motion for a new trial in' each of these two cases is without merit.

2. The general grounds of the motions for a new trial, not being argued or insisted upon in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment affirmed.

Luhe and Bloodioorth, JJ., eoneur.


text:
    17423.
    Berry v. The State.
    Criminal Law, 16 C. J. p. 1180,'n. 74.
    Decided July 14, 1926.
    Possessing intoxicating liquor; from Seminole superior court— Judge Yeomans. April 26, 1926.
   Bboyles, C. J.

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

Judgment affirmed.

Luhe and Bloodworth, JJ., eoneur.

Drake & Drake, for plaintiff in error.

B. T. Gastellow, solicitor-general, R. R. Arnold, E. G. Hill, contra.


text:
    17427.
    Hogan v. The State.
    Criminal Law, 16 C. J. p. 1157, n. 62; 17 C. J. p. 263, n. 79.
    Juries, 35 C. J. p. 417, n. 22 Hew.
    Decided July 14, 1920.
    Possessing intoxicating liquor; from Twiggs superior court— Judge Camp. April 17, 1926.

      H. F. Griffin Jr., J. D. Shannon, for plaintiff in error.

      Fred. Kea, solicitor-general, contra.
   Broyles, C. J.

A motion was filed by the accused to set aside a verdict of guilty. The motion was based upon two grounds: first, that one of the jurors was under 21 years of age; and second, that the accused was absent from the court-room and under the charge of a deputy sheriff when the verdict was rendered. The first ground is without merit, as causes of challenge to a juror propter defectum must be discovered and urged before verdict. Henderson v. Fox, 83 Ga. 234 (7) (9 S. E. 839). As to the second ground: Upon the hearing of the motion the evidence as to whether the accused was absent from the court-room when the verdict was returned was in conflict, and the finding of the judge upon this question of fact was final.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17438.
    Stroud v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. J. p. 271, n. 41.
    Decided July 14, 1926.
    Possessing intoxicating liquor; from Douglas superior court— Judge Irwin. May 3, 1926.

      Astor Merritt, for plaintiff in error.

      E. S. Griffith, solicitor-general, contra.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only. The evidence, while weak, authorized the verdict; and the finding of the jury having been approved by the trial court, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodiuorth, JJ., concur.


author: Jenkins, P. J.

text:
    16861.
    COKER v. CITIZENS BANK OF GAINESVILLE.
    1. The record does not disclose any fact or circumstance indicating fraud or collusion on the part of the plaintiff bank, as holder of the note sued on, in procuring its execution, nor does it appear that the plaintiff either caused or knew of the alleged drunken condition of the defendant, by means of which it is alleged the note had been procured. Consequently, the court did not err in directing a verdict in plaintiff’s favor to the extent of its interest therein as a bona fide holder for value. Abbeville Trading Oo. v. Butler, 3 Ga. App. 138 (1 6) (59 S. E. 450) ; Ball v. Langford, 18 Ga. App. 73 (2) (88 S. E. 918). Upon the issue submitted to the jury as to the actual perpetration of fraud by the pharmacy company as the intermediate holder and present part owner of the note, and by the payee himself in the procurement of the note, and their alleged misconduct in procuring the same by having caused the defendant to become drunk at the time of its execution, the evidence demanded a finding in favor of the pharmacy company, and authorized the finding of the jury adverse to the contentions of the defendant as to the payee of the note, and its verdict can not be set aside upon the theory that a contrary finding on this issue was demanded. Moreover, under the evidence the jury were authorized to find that, under the terms of the previous written contract of purchase, the payer of the note was already unconditionally obligated to pay for the restaurant, of which he had already taken possession under the contract, at the price represented by the note. Consequently his alleged drunkenness at the time of its execution is no defense to the note, which did nothing more than obligate him to pay an amount for which he was already bound. Strickland v. Parlin &c. Go., 118 Ga. 213 (4) (44 S. E. 997).
    2. The defendant excepted to the ruling of the trial judge holding that under the pleadings the burden, of proof was upon the plaintiff, with the consequent right on its part to open and conclude. In order to entitle a defendant to the right to open and conclude the argument, he must, before the introduction of any evidence, clearly and unequivocally admit by his plea a prima facie right in favor of the plaintiff to recover without the introduction of evidence on its part. Farmers é Merchants Bank v. Brantley, 20 Ga. App. TJi. (93 S. E. 237). Thus, where the suit is upon a promissory note, a mere admission by the defendant as to his execution of the note sued on, without a further admission that the plaintiff was the legal holder of such instrument, is insufficient to change the burden. Dodd v. Borman, 99 Ga. 319 (25 S. E. 650). In the instant ease the petition described a note made by the defendant to another party, on which it avers the defendant is liable to it, but fails to aver that plaintiff is the holder thereof. The defendant, while inferentially admitting the execution of such a note, denies the allegation of his liability thereon, and, while expressly denying that the plaintiff is the bona fide holder, fails to indicate that it is the actual holder thereof. Consequently the pleadings do not make a prima facie case for the plaintiff, such as would give to defendant the right to open and conclude.

      Bills and Notes, 8 O. J. p. 1047, n. 10; p. 1052, n. 50; p. 1060, n. 38.
    Fraud, 37 C. J p. 1150, n. 79.
    Trial, 38 Oye. p. 1304, n. 69, 70; p. 1307, n. 5; 1565, n. 84; p. 1702, n.

      3. The judge charged the jury that the original burden was upon the plaintiff to make out its case; that upon proof of the execution of the note and that it was the holder thereof, the burden shifted upon the defendant to prove his defense of fraud and duress in the procurement of the note. Exception is taken to the failure of the judge to further charge the jury, that, upon it being shown that the title of any person who had negotiated the instrument to plaintiff was defective, the burden then became again shifted upon the holder to prove that he or some other person under whom he claimed was a holder in due course. Held: “The court having correctly charged the jury in regard to the general burden of proof, it will not be held error, in the absence of a written request, that he failed to instruct the jury upon the subject of the shifting of the burden which may arise during the progress of the case.” Albany Warehouse Oo. v. Sillmcm, 147 Ga. 490 (94 S. E. 569). See also Edenfield v. Boyd, 143 Ga. 95 (2) (84 S. E. 436) ; Hawldns v. Davie, 136 Ga. 550 (1 a) (71 S. E. 873) ; Lazenby v. Citizens Bank, 20 Ga. App. 53, 55, 56 (92 S. E. 391). Moreover, since the judge substantially charged the jury that a verdict in favor of the holder of the note was demanded in so far as its own interest in the note was concerned, and directed a verdict to that extent accordingly, the principle of law here sought to be invoked is entirely inapplicable. In so far as the plaintiff was entitled to recover for the interests in the note owned by the other owners thereof, the rule as to a bona fide holder in due course did not apply, and the judge in substance charged the jury that upon proof by the defendant of his defense setting up fraud and duress in the procurement of the note the plaintiff could not recover for the interests in the note belonging to the other owners.
    4. On the trial of the case it appeared that the original written contract of purchase and sale of the restaurant property, entered upon about a month previously to the giving of the note for the balance of the purchase-money, had been lost and could not be produced, each party contending that it had been left with the other party after being signed. The terms of this agreement were in dispute to the extent that the defendant claimed that by it he was not to be bound by the contract of purchase of the restaurant unless it should thereafter appear that the property purchased was worth the sum of $7,000. It appeared from the evidence that on the night previous to the giving of the note, defendant had gone to Gainesville, and had taken supper in the restaurant, of which he had been in possession for a month and which was then operated by his son, and had taken breakfast there on the following morning, the day the note was executed. The court allowed the defendant to introduce testimony upon the question of the value of the property purchased, and also allowed the plaintiff to introduce testimony as to its value and cost. The evidence as to the cost was undisputed; the testimony as to value was in conflict. Held: There being no fraudulent misrepresentation of fact, and the opinion evidence as to value being such as would sustain the verdict even under defendant’s contention as to the terms of the original contract, and the defendant having been in possession of the property for a month, and having had the same and equal opportunity with the plaintiff of inspecting the property purchased and of ascertaining its nature, value, and condition, the judge did not err in charging as he did relatively to the alleged misrepresentations as to value. “When the means of knowledge are at hand and equally available to both parties to a contract of sale, if the purchaser does not avail himself of these means, he will not be heard to say, in impeachment of the contract, that he was deceived by the representations of the seller.” Miller v. Roberts, 9 Ga. App. 511 (2) (71 S. E. 927). The charge complained of, with reference to the effect of the alleged misrepresentations, is in practical conformity with the principle of law just stated.
    Decided July 20, 1926.
    Complaint; from Floyd superior court—Judge Wright. August 22, 1925.

      Nathan Harris, J. 0. Adams, for plaintiff in error.

      Willingham, Wright & Covington, C. N. Davie, C. 8. Reid, contra.
   Jenkins, P. J.

Defendant Coker, a resident of Rome, Georgia, operated a shoe store in the City of Gainesville in a building which he leased from the Imperial Pharmacy, of which J. W. Jacobs was proprietor. His lease was at a monthly rental of $50, and had eight or ten years to run. He approached Jacobs in August, 1922, with a view to securing a cancellation of the lease, and offered Jacobs $1,000 in settlement of some $400 back rent then due, and to release him from future liability, which was refused. Barron operated a restaurant in the- City of Gainesville; and on December 5, 1922, Barron and defendant’s son, who was operating the shoe store for defendant, went to Rome where Coker lived, and Barron and Coker entered into a written agreement whereby Barron took over defendant’s lease on the shoe store, and defendant took over Barro-n’s lease on the restaurant, and purchased the restaurant equipment, which Barron stated to him was worth seven or eight thousand dollars. Coker agreed to pay Barron, in consideration of this purchase and exchange, the sum of $4,000, of which he then paid $500 in cash. Defendant demanded of Barron the keys to the restaurant on that occasion, and they were delivered, and at the direction of defendant his son took immediate charge and control of the restaurant in Gainesville, and thereafter operated it for the defendant. ' Coker made a trip to Gaines-ville on January 5, 1923, and on that occasion executed to Barron a note for $3500, dated December 6, 1922, and maturing January 28, 1923. Hpon the execution of this note, and in fulfillment of the terms of the previous contract referred to, Barron procured the cancellation of Coker’s lease with the pharmacy by agreeing to pay the pharmacy $2150 from the proceeds of Coker’s note. It appears that Barron was insolvent and owed the plaintiff bank the sum of $500, for which it had no security; that the pharmacy also owed the bank $1,000, and that the proprietor of the pharmacy, Jacobs, owed the bank $415.81, none of wliich debts was secured. Coker’s note was indorsed by Barron and by the pharmacy, and delivered to plaintiff bank as collateral security for the debts thus mentioned as owing to it. It thus appears that at the time the suit was filed the different interests in the note were held as' follows: Citizens Bank of Gainesville, $1915.81; Imperial Pharmacy $734.19; Barron, $850. This purchase-money note contained a title-retention agreement, and the plaintiff bank as holder, after default therein, levied a purchase-money attachment on the restaurant fixtures and equipment, and they were sold for $519.75 at sheriff’s sale, which sum remained in the hands of plaintiff, no credit being given on the note therefor. Upon suit being instituted on the note by the bank, Coker filed a defense in which he admitted the execution of such a note, but denied that the plaintiff was the bona fide, owner and holder of the same. He set up that plaintiff had paid no consideration for the note, and that the note was obtained from him by the fraud and conspiracy of Barron, Jacobs, and the bank through its officers and agents; that Barron misrepresented the value of the restaurant property to him when the trade for the same was made; and that he bought it on condition that it should, on examination by him, prove to be worth seven or eight thousand dollars; that the bank knew all about the transaction; and that when he went to Gainesville about January 5, Barron and Jacobs, and the bank through its officers and agents, got him drunk and obtained the note from him when he did not know what he was doing. The evidence was in conflict as to whether Coker was drunk at the time the note was signed, and as to whether Barron had furnished him any liquor.

The judge directed a verdict in favor of the plaintiff as to the interest in the note owned by it, but submitted to the jury the issues of fraud and duress as relating to the interests owned by Barron and the pharmacy company. The jury found for the plaintiff on all these issues, allowing credit for the proceeds of the sheriffs sale. Defendant’s motion for a new trial was overruled, and he brings error. Our rulings on the grounds of the motion appear in the syllabus.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    16877.
    GLOBE INDEMNITY COMPANY et al. v. LANKFORD.
    An order of the industrial commission approving a lump-sum settlement between an employee and an employer, reciting that the amount paid or to be paid is equal to the value of the probable future payments and shall be a “complete settlement of any disability” that the employee “may now have or in the future may have as a result of the injury sustained, ” is not, even when acted upon by the parties, conclusive as to the employee’s right to additional compensation within the maximum provided in the compensation act, in the event of a subsequent change in condition on account of which the employee seeks a review of the settlement.
    Constitutional Law, 12 C. J. p. 784, n. 37; p. 787, n. 96.
    Courts, 15 C. J. p. 1038, n. 36.
    Workmen’s Compensation Acts, C. J. p. 9, n. 38; p. 102, n. 92 New; p. 103, n. 97, 98; p. 108, n. 90, 91, 95; p. 114, n. 12 New; p, 132, ,n. 79, 82 New.
    Decided July 20, 1926.
    Appeal; from Fulton superior court—Judge Bell. September 30, 1925.

      Bryan & Middlebroolcs, for plaintiffs in error.

      B. P. Gambrell, James A. Miller, contra.
   Bell, J.

For an injury received by him on June 28, 1923, the industrial commission awarded to II. L. Lankford compensation at $15 per week for not exceeding 350 weeks. After receiving the weekly payments for 86-2/3 weeks, he applied to the commission for the approval of an agreement between him and his employer for a lump-sum settlement of any and all compensation that might be due to him in the future. The application coming on to be heard on February 17, 1925, the commission made the following award thereon: “Application for a lump-sum settlement was made in this case, whereby the insurer agrees to pay the sum of $160 in a lump-sum settlement. It appearing that the payment of this amount is equal to the value of the probable future payments, the commission hereby approves this settlement. The insurance carrier will pay H. L. Lankford the sum of $160, in full and complete settlement of any disability that H. L. Lankford may now have or in the future may have as a result of the injury.” Note that, from the amount of this settlement and the language of the order, it must have been believed at that time that the disability would continue not longer than approximately 11 weeks, although under the award the compensation was payable for a then remaining period of not exceeding 263-1/3 weeks. In June, 1925, the employee made to the commission an application for a review of the settlement, on the ground of a change in condition. Upon this application the commission passed the following order: “The commission, upon application of claimant, after a formal hearing, having rendered judgment commuting the weekly payments to a lump-sum payment, and having thereby judicially determined that the amount of said lump-sum award was equal to the value of the probable future payments, and the judgment expressly providing that the payment by the insurance [carrier] should be in full and complete settlement of any present and future disability, and the claimant having accepted this award and received the payment therein provided, the judgment rendered on February 17, 1925, is final and conclusive, and evidence will not be heard to determine whether there has been a change of condition of said claimant since said award.” This order was reversed by the superior court on an appeal by the employee, and the employer and the insurance carrier excepted. The only point raised by the plaintiffs in error is that the application for review was barred by the nature and character of the previous settlement.

According to our interpretation of the several pertinent provisions of the compensation act (Ga. Laws 1920, p. 167), an employee can not be deprived of the compensation to which he is entitled thereunder by any agreement between himself and his employer, notwithstanding its approval by the industrial commission. Section 7 of the act provides, “That no contract or agreement, written or implied, no rule, regulation, or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this act, except as herein otherwise expressly provided.” Section 19 provides that no agreement of settlement shall be binding unless approved by the commission; but the commission itself is without power to foreclose the rights of the employee upon any terms other than those prescribed in the act. (See sections 43, 44, and 45.) “The Georgia Industrial Commission is not a court of general jurisdiction, nor even of limited common-law jurisdiction, but it is an industrial commission, made so by express terms of the act of the legislature to administer its provisions as provided therein. As such administrative commission it possesses only such jurisdiction, powers, and authority as are conferred upon it by the legislature, or such as arise therefrom by necessary implication to carry out the full and complete exercise of the powers granted.” Gravitt v. Ga. Casualty Co., 158 Ga. 613 (123 S. E. 897).

The lump-sum settlement in this case, as ought to be true in every ease, represented the converted cash value of the weekly installments to which the employee would be entitled, considering his then apparent condition. The commission, of course, had the authority to approve the settlement. But if it sought to adjudicate against a change in condition or to determine that such and such a change would or would not take place, it exceeded its powers, because under section 45 the employee is entitled, under certain conditions (see U. S. Casualty Co. v. Smith, 162 Ga.—, 133 S. E. 851; Gravitt v. Ga. Casualty Co., supra), to a review of any award or settlement upon a change of condition. If it should appear that since the settlement or award the claimant has undergone a change of condition, due to his injury, for which he should be compensated as by weekly payments for a longer period or in a greater amount than was contemplated and represented in the lump-sum received, the settlement would not be conclusive even though it be solemnly approved by an order of the industrial commission. It is not binding, and no action of the commission can make it so. The lump sum agreed on must be fixed at an ’amount which will equal the total sum of the probable future payments capitalized at their present value upon the basis of interest at five per cent, per annum (see section 43). But if it should subsequently develop that the “probable future payments” should be extended for a longer time or increased to a larger amount than the commission estimated at the time of the settlement, its judgment, based on probability, will be subject to review and to be superseded by a new award, based on the actual facts, increasing the compensation previously awarded or agreed upon (section 45). Thus if, while an employee is receiving compensation under an award calling for not exceeding 263 further weekly installments, it should appear from his improving condition that his disability would probably cease in 11 weeks, so that at the end of this period the payments should be altogether stopped, and if the commission should thereupon approve an agreement between the parties for a settlement in cash of the 11 probable weekly payments, the employee would not be concluded if it should subsequently be established that the probability of his restoration was unfounded and that in truth his compensation should not have terminated at the expiration of such last-named period. The commission’s findings, when supported by any evidence, are conclusive of all questions of fact with which it had authority to deal, but it can not refuse to make a finding as to a change of condition merely because of a prior approved settlement. An appeal for review upon the ground of such change presents a quasi-new case although it is not a new proceeding, and it is the duty of the commission to examine into it, if the matter sought to be reviewed has not been judicially determined, or become res adjudicata, and if the commission still has jurisdiction of the subject-matter, U. S. Casualty Co. v. Smith, supra. It was said in that case that section 45 “expressly provides for compensation in a case where there has been a change in condition of the employee; and this necessarily extends jurisdiction of the commission to review the settlement agreement or its original award.” We are not to be understood as holding that the commission must give a hearing on the merits of every such application for review. It might, perhaps, be obliged to do so only when a preliminary inquiry discloses that the application is probably meritorious; and if the application is heard, it will be within the exclusive province of the commission to determine from the evidence whether the change of condition has actually occurred as represented. If it has not occurred, the application will, of course, be denied; if it has occurred, it will be the duty of the commission to modify the previous settlement or award, subject to the provisions of section 45. This court in U. S. Casualty Co. v. Smith, 34 Ga. App. 363 (129 S. E. 880), held that the commission has the same power to review a settlement as it has to review an award, and that the right of a party at interest to make application for review is as clear in one case as in the other. The effect' of a lump-sum settlement, as distinguished from settlements of other character, was not considered in that case; but we will now say that the right of a party at interest to a review of a lump-sum settlement is as clear as his right to a review of any other settlement.

This conclusion may appear to be radical; but, even so, we think no other is possible under a correct interpretation of the statute. The workmen’s compensation act wrought far-reaching-changes in the law, uprooting from the field of its operation principles theretofore so firmly fixed that it is difficult to divorce the mind from them and to think solely in terms of the rules substituted. In Goelitz v. Industrial Board, 278 Ill. 164 (115 N. E. 855), the Supreme Court of Illinois said: “The fundamental basis of workmen’s compensation laws is that there is a large element of public interest in accidents occurring from modern industrial conditions, and that the economic loss caused by such accidents should not necessarily rest upon the public, but that the industry in which an accident occurred shall pay, in the first instance, for the accident.” Whether the particular provisions which we are called upon to construe may be unconstitutional as unduly encroaching upon the liberty of contract, or otherwise (see the Smith case as last above cited), no question as to their constitutionality is raised in this ease; otherwise this court would have no jurisdiction. In the absence of a proper challenge of the validity of these provisions, they are to be regarded as constitutional and valid. It is true that, whether a constitutional question is raised or not, a statute should be so construed as not to infringe the constitution, if it can be reasonably done (Virginia-Carolina Chemical Co. v. Floyd, 159 Ga. 311 (125 S. E. 709)), but, whether the construction which we have adopted in this case will carry the act of unconstitutional limits, we think that the provisions under consideration are not reasonably susceptible of a different interpretation. The Smith case was decided by this court, and later went on certiorari to the Supreme Court, by which the judgment of this court was affirmed. In that case it was unnecessary for this court or the Supreme Court to determine whether the industrial commission has the power to refuse an application to review an approved settlement upon the ground that such settlement was conclusive; for the application there was granted, and the rulings were rather to the effect that the particular settlement did not purport to conclude the employee upon the question of his right to compensation in the event of a change of condition. This court merely assumed that a settlement agreement might be made which would defeat such right, and would be valid if approved by the commission; and this we think was also true of the decision of the Supreme Court. The present record, however, calls for a decision of the proposition; and we hold, as above indicated, that no sort of settlement, whether made with or without the intervention of the industrial commission, can defeat the right of the employee to the compensation which the State has declared he should have. In so holding we have not overlooked the provision of section 19, to the effect that settlements are encouraged. It is to be observed that that section does not pretend to encourage settlements except so long as the amount of compensation and the time and manner of payment' are in accordance with the provisions of the act.

The above views are in harmony with the weight of authority. In the case of Holland, 72 Ind. App. 588 (126 N. E. 236), upon facts similar to those of the case now under consideration, it was held that approval of a lump-sum agreement and payment of the sum fixed by the industrial board did not have the effect of extinguishing compensation liability of the employer, arising from a change in condition on account of the original injury taking place after said date, in view of workmen's compensation act, §§ 43, 45. The sections referred to are substantially the same as the language of the Georgia act on the subject of reviews of awards and settlements. In St. Joseph Mining Co. v. Pettitt, 90 Okla. 242 (216 Pac. 657), the Supreme Court of Oklahoma, in construing a section of the act of that State similar to section 45 of the Georgia act, said: “An agreement entered into between the employer and the employee as to the facts with relation to the injury, and approved by the industrial commission under section 7294, Comp. Stat. 1921, under which agreement the employee received a lump-sum amount, is not a release of liability for the injury sustained, but is the basis of the award of the industrial commission, and an award made thereon has the same force and effect as an award made upon a hearing, and may be reviewed under the provisions of section 7296, Comp. Stat. 1921.” The court in that case further stated, “It is not necessary to prove fraud in procuring an agreement in order to authorize a review of such award, but compliance with section 7396, Comp. Stat. 1931 [the same in substance as section 45 of the Georgia act], is all that is necessary.” In Peoria R. Co. v. Industrial Commission, 390 Ill. 177 (135 N. E. 1), the Supreme Court of Illinois held: “Despite workmen’s compensation act, § 9, allowing lump-sum settlements, under section 19(h) petition for review of an original award for compensation payable in installments can be maintained when filed within 18 months of the original award, either before or after an order for commutation to a lump sum has been entered by the industrial commission.” Section 19(h) of the Illinois act was as follows: “An agreement or award under this act, providing for compensation in installments, may, at any time within 18 months after such agreement or award, be reviewed by the industrial board at the request of either the employer or the employee, on the ground that the disability of the employee has subsequently recurred, increased, diminished, or ended, and on such review, compensation payments may be re-established, increased, diminished, or ended.” The court in that case further said: “Because of the recognized inability of the medical profession to forecast.with any certainty the results of an injury causing partial- disability, as well as their 'inability many times to determine whether or not the disability is temporary or permanent or to determine the exact extent of the injury, the lawmaking power of the State has fixed a period of 18 months within which such results may be determined with reasonable certainty. A review of the award or agreement within that period enables the industrial commission to determine from the evidence, with some degree of certainty, the true extent of the injury.” There is no provision in the Georgia act, as in the Illinois act, requiring that an application for review must be made within any certain period of time. Nor does the Georgia statute provide for the making and determination of an issue as to whether an employee’s condition will or will not change, so as thereby to make an adjudication foreclosing any later contention of an actual change, should it occur.

The McCarthy case, 336 Mass. 444, cited by the commission in the present case, was believed by the Supreme'Court of Indiana, in the Holland case, supra, not to be “supported by the better reason.”

We conclude that the industrial commission erred in holding that the employee was precluded by the lump-sum settlement, and in refusing for that reason to entertain his application for a review. It follows that the superior court was right in reversing the order of the commission, and in remanding the case for further proceedings on the merits. See also, in this connection, Louisville Milling Co. v. Turner, 209 Ky. 515 (273 S. W. 83); Ellsworth v. Industrial Commission, 90 Ill. 514 (4) (125 N E. 246).

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    16961.
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. CORBETT.
    1. Under a policy of insurance covering “actual loss or damage” by collision to an automobile, and stipulating that “in any event the company shall be liable only for the actual cost of repairing, or, if necessary, replacing the parts damaged or destroyed,” the company’s principal or primary liability, where liability exists, is for the difference between the value of the property immediately before the injury and its value immediately afterwards, the stipulation that the liability shall not exceed the cost of repair or replacement being a subordinate provision, to be pleaded defensively, with facts showing its applicability, if the company would reduce or limit its liability by reason thereof. In a suit upon the policy, to recover an amount appearing to have been determined by appraisers to be the amount of loss measured as above indicated, the petition was not subject to demurrer upon the ground that it showed that the appraisers had applied a measure of liability different from that contemplated by the policy, it not appearing that the insurer had sought to have the appraisers estimate the loss in accordance with such special provision.
    2. It was not essential to the validity of the appraisement which the parties sought to have made in accordance with the policy that the submission to the appraisers should have been in writing.

      (а) It sufficiently appeared from the allegations of the petition, construed in the light of the policy, that tlie parties had a difference, namely, as to the amount of the loss, and that this was the matter submitted to the appraisers.
    (б) The appraisement was not vitiated because certain distinct parts thereof were not responsive to the submission, nor because it did not set out the facts upon which it was predicated.

      Arbitration and Award, 5 O. J. p. 17, n. 13.
    Damages, 17 C. J. p. 877, n. 8.
    Fire Insurance, 26 C. J. p. 353, n. 2; p. 424, n. 18; p. 425, n. 42; p. 432, n. 43.
    Insurance, 32 O. J. p. 1152, n. 91, 94; 33 C. J. p. 88, n. 88.
    Motor Vehicles, 28 Cyc. p. 50, n. 59 New. '

      3. The allegations made for the purpose of recovering attorney’s fees and damages were not open to attack by special demurrer upon the ground that they were mere conclusions of the pleader.
    4. The second count of the petition sought a recovery solely upon the appraisement or award. Under the terms of the policy and the submission to the appraisers, the appraisement was neither a statutory nor a common-law award. It could have amounted to nothing more than a contractual method of ascertaining the loss, settling no other fact, and could not alone be the basis of a judgment or cause of action. The court erred in not sustaining the general demurrer to the second count.
    Decided July 20, 1926.
    Action on insurance policy; from Colquitt superior court-judge W. E. Thomas. October 26, 1925.
    The United States Fidelity and Guaranty Company issued to E. J. Corbett a policy of insurance on an automobile, covering “actual loss or damage” thereto “caused solely by accidental collision -with another object.” The policy contained, among others, the following provisions: “C. It shall be optional with the Company to repair, rebuild, or replace the automobiles or parts thereof damaged or destroyed with other of like kind and quality, within a reasonable time; but there can be no abandonment to 'the Company of the property insured. In any event the Company shall be liable only for the actual cost of repairing, or, if necessary, replacing the parts damaged and destroyed.” “E. In the event of any loss or damage to any automobile insured hereunder, the amount of such loss or damage shall, if possible, be determined between the Assured and the Company; but if they fail to agree, it must be determined by competent appraisers before other recovery is sought. The Assured and the Company shall each select one appraiser, and the'two appraisers shall select a third, to whom they shall submit any difference. The award in writing of any two appraisers shall determine the amount of loss or damage.” The automobile was injured by an accidental collision with another object, and the insured brought suit against the insurer to recover the amount of loss. The petition was in two counts. The first count alleged that the value of the automobile immediately before the injury was $3407, that its value immediately thereafter was $650, and that the company was liable to the plaintiff for the difference, $2757. The further allegations of this count were as follows: “Petitioner having submitted to the defendant a statement of the amount of loss and damage claimed by him to have been sustained under said policy by reason of said collision, the defendant having refused to pay the same, and the petitioner and the defendant having been unable to agree or to satisfactorily determine the amount of such loss or damage,” the defendant advised its agent at Moultrie, Ga., that the amount of the loss must be determined by appraisers as provided in the policy, and instructed such agent to so notify the plaintiff, in order that he might select an appraiser to act with an appraiser selected by the defendant. The plaintiff thereupon selected an appraiser, and informed the defendant of his action, and the two appraisers thus chosen selected a third appraiser under the provisions of the policy. The appraisers, after due notice to the parties of the time and place of their meeting, “investigated the extent of the loss and damage to petitioner’s automobile, determined the amount thereof, and made a written award or finding in which they determined and stated that the sound value of petitioner’s automobile, on the date of said wreck, was $3407, and that the value of the automobile, in its wrecked condition, was $650, and that the amount of loss and damage sustained by petitioner was $3757.” This allegation was in accordance with the appraisers’ finding as to the amount of the loss, as shown by a copy of their report attached to the petition. The report undertook to determine other matters, such as the manner in which the car should be repaired, the time when the repairs should be completed, and the right of inspection and acceptance by the assured, after its repair, should the company elect to repair it.
    A few days after the appraisers made and submitted their report, “the defendant, in writing, definitely declined to pay petitioner the aforesaid amount of loss and damage, and advised that it would not even consider said amount of loss and damage so determined and ascertained in the manner aforesaid, nor would it pay to petitioner said amount as the amount of loss and damage claimed by him to have been sustained under said policy and caused by said collision.” Plaintiff has “performed and complied with all of the conditions and requirements imposed upon him by said policy.” The defendant is indebted to plaintiff in the sum of $3757 as the actual loss or damage to said automobile by reason of said collision, and in the further sum of $37.50 “paid by petitioner in saving, recovering, and protecting said automobile [from further loss and damage] immediately following said accident,” which expense the plaintiff incurred at the direction of the defendant’s agent and in accordance with the provisions of the policy. The defendant has failed and refused to pay the plaintiff “said amounts of loss and damage.” The defendant’s “denial of liability and its failure and refusal to pay said amounts were in bad faith and without legal excuse or justification, and . . on account of said conduct of defendant it was necessary for petitioner to employ counsel to maintain and prosecute this suit in order to enforce petitioner’s rights under said policy.” The defendant is therefore liable to the plaintiff for attorneys’ fees and damages in a stated amount, in addition to the principal loss and damage and interest thereon. The second count of the petition contained substantially the same averments as the first count, but was expressly made a suit on the “award.” The plaintiff amended the first count by adding the following: “that the actual loss and damages to said car represents and consists of the amount necessary to spend for the actual cost of repairing and replacing the various parts of said autpmobile which were destroyed by said collision; that the same amounts to at least $2757; that the plaintiff lists and gives herewith an itemized statement, showing the items, parts, and articles and the cost of each, together with the other cost required to be expended, necessary for the actual cost of replacing and repairing the damaged and destroyed parts of said automobile; and that plaintiff attaches hereto said list or statement, which is marked 'Exhibit C’ and made a part of this paragraph.” The exhibit was attached and gave the information stated. There was a further amendment both to the first count and to the second count, but that has been merged in the above statement.
    The defendant, prior to the amendments, demurred to each count of the petition both generally and specially. After the amendments the demurrers were renewed and overruled, and the defendant excepted. It is unnecessary to set forth the several grounds of the demurrer in detail. They are sufficiently indicated in the questions dealt with in the opinion.

      Hoyt H. Whelchel, for plaintiff in error.

      J. J. Hill, J. 0. Gibson, contra.
   Bell, J.

(After stating the foregoing facts.) In an action by the owner of personal property, such as an automobile, to recover for loss or damage sustained by him as a result of a tortious injury thereto, the measure of damages is to be determined under general principles of law. Olliff v. Howard, 33 Ga. App. 778 (127 S. E. 821). But in a suit on a contract, as a policy of insurance, whereby the owner is insured against actual loss or damage to an automobile by collision, the measure of the insurer’s liability will be determined according to the terms of the contract. In an action on an insurance policy, to recover the “actual loss or damage” by collision to an automobile, in which it is stipulated that the insurer shall in any event be liable “only for the actual cost of repairing, or, if necessary, replacing the parts damaged and destroyed,” where it is possible by repair and replacement to restore the automobile to its former condition within a reasonable time (Non-Royalty Shoe Co. v. Phoenix Assurance Co. (Mo.), 178 S. W. 246; Central Garage Co. v. Columbia Ins. Co., 96 N. J. L. 456, 115 Atl. 401), the defendant might by proper pleading and evidence limit the plaintiff’s recovery to the amount necessary to accomplish such restoration. Spivey-Johnson Portrait Co. v. Belt Automobile Ins. Assn., 210 Ala. 681 (99 So. 80); Letman v. Employers Liability Assurance Corp., 170 Ill. App. 379; Wolff v. Hartford Eire Ins. Co., 204 Mo. App. 491 (223 S. W. 810); Md. Motor Car Ins. Co. v. Smith (Tex. Civ. App.), 254 S. W. 526; Commercial Fire Ins. Co. v. Allen, 80 Ala. 571 (6) (1 So. 202); Burkett v. Ga. Home Ins. Co., 105 Tenn. 548 (58 S. W. 848); Texas Moline Plow Co. v. Niagara Fire Ins. Co., 39 Tex. Civ. App. 168 (87 S. W. 192); McCready v. Hartford Fire Ins. Co., 61 App. Div. 583 (70 N. Y. Supp. 778).

The actual cost of repairing or replacing the injured or destroyed parts could be materially greater or less than the actual depreciation in value of the property by reason of the injury. 17 C. J. 877; 26 C. J. 353; 2 Sutherland on Damages (4th ed.), 3040, § 821; So. Ry. Co. v. Ky. Grocery Co., 166 Ky. 94 (178 S. W. 1162); and cases cited above. But “Policies of insurance will be liberally construed in favor of the object to be accomplished, and the conditions and provisions of contracts of insurance will be strictly construed against the insurer who prepares such contracts.” Johnson v. Mutual Life Ins. Co., 154 Ga. 653 (115 S. E. 14). So, under the provisions of the policy now under consideration, the undertaking of the company to insure the owner against “actual loss or damage” must be taken as the primary obligation, under which the measure of the liability would be the difference between the value of the property immediately before the injury and its value immediately afterwards (Eberhardt v. Federal Ins. Co., 14 Ga. App. 340 (2), 80 S. E. 856); and the stipulation that the liability should not exceed the cost of repair ot replacement must be construed as a subordinate provision, limiting or abating the primary liability, to be pleaded defensively if the insurer would diminish or limit the amount of recovery by reason thereof. Mechanics Ins. Co. v. Hoover, 105 C. C. A. 128 (182 Fed. 590, 31 L. R. A. (N. S.) 873); Standard Sewing Machine Co. v. Royal Ins. Co., 201 Penn. 645, 51 Atl. 354; Haden v. Imperial Ins. Co., 197 Mo. App. 574 (198 S. W. 72). Since an appraisement which conforms to the requirements of the policy and under the agreement for submission is, in the absence of fraud, accident, or mistake, binding and conclusive upon the parties as to the amount of the loss or other matters submitted (Eberhardt v. Federal Ins. Co., supra; Saville v. Ætna Ins. Co., 8 Mont. 419 (20 Pac. 646, 3 L. R. A. 542); 26 C. J. 425, § 560), it would seem that if the insurer saw fit to submit the question of the amount of its liability to appraisers, without insisting upon such secondary or subordinate stipulation and without bringing facts before them to show its applicability in reducing the liabilitjp and if the appraisement was otherwise valid, the insurer could not rely--upon such matter in defense to a suit upon the policy for the amount so determined by the appraisers. But whether it might do so by plea is a question not for decision under the record before us. The question now presented is whether the defense could be made by a demurrer attacking the petition upon the ground that it appeared that the appraisers determined the amount of the loss in a manner contrary to the terms of the policy, where there is nothing to show that the defendant made any contention before them that its liability should be fixed by the special provision referred to. We are satisfied that the defense could not be so made by demurrer.

Where a policy of insurance against loss or damage to property provides that if the parties thereto fail to agree as to the amount of loss, it shall be determined by appraisers, one tp be named by each of the parties and the two thus named to select a third, to whom the parties shall submit any difference, and that the award in writing of such appraisers, or a majority of them, shall determine the amount of loss, and-where the policy contains no other provisions respecting the effect of the appraisement, an appraisement had thereunder does not constitute either a statutory or common-law award, and the question of whether the submission to the appraisers should have been in writing should be determined by the terms of the policy. The policy now under consideration did not require a written submission. Blakely Oil &c. Co. v. Proctor & Gamble Co., 134 Ga. 139 (2) (67 S. E. 389); Williams v. Hamilton Fire Ins. Co., 118 Misc. 799 (194 N. Y. Supp. 798). When the allegations of the petition are construed in the light of the provisions of the policy, it sufficiently appears that the parties had a difference, namely, as to the amount of the loss, and this was the matter submitted to the appraisers; and it can not be said that the appraisement was invalid because it nowhere appears in the petition “what question of dispute between petitioner and defendant was submitted to the appraisers.” Eberhardt v. Federal Ins. Co., supra. The fact that the appraisers may have had no authority to “award any sum to any jDerson,” and that they may have exceeded their powers in attempting to determine the liability, and in other respects, would not vitiate that part of the appraisement which was responsive to the question submitted. Hexter v. Equitable Fire &c. Ins. Co., 123 Me. 77 (121 Atl. 555); and compare Civil Code (1910), § 5022. The policy not requiring it, it was not necessary for the appraisement to set out in detail the facts made the basis thereof, and a statement of the amount of loss in a general conclusion was sufficient. 26 C. J. 423. Under the allegations of the petition, the appraisement was not invalid for any reason urged in the demurrers.

But even granting, for the sake of the argument, that the appraisement was void, the first count of the petition contained sufficient allegations, independently thereof, to state a cause of action, doing so even by the measure of liability asserted in the demurrers to be the proper measure. A void appraisement has no effect upon the rights of the parties, and suit may be maintained on the policy without regard thereto. 26 C. J. 425; Ætna Ins. Co. v. Jester, 37 Okla. 413 (132 Pac. 130, 47 L. R. A. (N. S.) 1191).

The averment in the first count of the petition, that the actual loss and damage to the automobile consisted of a stated amount alleged to be necessary for the actual cost of repairing and replacing the various parts destroyed, as shown by an attached statement itemizing the “parts and articles and the cost of each, together with the other cost required to be expended . . in repairing and replacing the damaged or destroyed parts of said automobile,” was not subject to special demurrer on the ground that it failed to show what parts were injured and what parts were destroyed. Central Ga. Power Co. v. Stubbs, 141 Ga. 172 (3) (80 S. E. 636); Central Ga. Power Co. v. Fincher, 141 Ga. 191 (2) (80 S. E. 645); Mackle Construction Co. v. Wyatt, 29 Ga. App. 617 (116 S. E. 877).

The allegations made for the purpose of subjecting the defendant to liability for attorney’s fees and damages were not open to special demurrer upon the ground that they were mere conclusions of the pleader. Rogers v. American National Ins. Co., 145 Ga. 570 (3) (89 S. E. 700); Jefferson Fire Ins. Co. v. Brackin, 147 Ga. 47 (2) (92 S. E. 930).

From what has been said the first count of the petition was not subject to the general demurrer nor to any of the special demurrers.

The petition contained a second count which sought a recovery upon the arbitration or award. An appraisement such as was contemplated by the terms of the policy in question would not determine liability. Not being an award, either common-law or statutory, it could amount to nothing more than a contractual method of ascertaining the loss, settling no other fact, and could not alone be the basis of a cause of action or judgment. The question of ultimate liability remained open, and the suit at last could be founded only upon the policy. Republic Iron & Steel Co. v. Norris, 25 Ga. App. 809 (104 S. E. 921); Eberhardt v. Federal Ins. Co., 14 Ga. App. 340 (80 S. E. 856); Willingham v. Veal, 74 Ga. 755 (3); Central R. Co. v. Rogers, 57 Ga. 336 (2); Williams v. Hamilton Fire Ins. Co., supra; Dunton v. Westchester Fire Ins. Co., 104 Me. 372 (71 Atl. 1037, 20 L. R A. (N. S.) 1058); 5 C. J. 17; 26 C. J. 425; City of Omaha v. Omaha Waterworks Co., 218 U. S. 180 (30 Sup. Ct. 615, 54 L. ed. 991, 48 L. R. A. (N. S.) 1084). The rule would be otherwise as to an adjustment or arbitration adjusting tbe liability as well as the loss. 26 "C. J. 432. In Littleton v. Patton, 112 Ga. 438 (37 S. E. 755), in which a suit on an award provided for in an original contract was held good as against a general demurrer, it appears that the parties “further agreed that they would pay such sums as were allowed by the arbitrators.” Since the second count was subject to the general demurrer, it is unnecessary to notice the special demurrer to this count.

Judgment affirmed in part, and reversed in part.

Jenlcins, P. J., and Stephens, J., concur.


text:
    16972.
    ALDAY v. SPOONER.
    In a proceeding by the head of a family to have a homestead set apart to him under the Civil Code (1910), §§ 3377 et seq., where'a creditor filed objections, one of which was an objection to the schedule for want of sufficiency and fullness, in that the applicant had omitted certain personalty which ought to have been scheduled, and where the ordinary rendered a judgment setting apart the homestead as applied for, appeal to the superior court was an available remedy to the creditor.
    Homestead, 29 O. J. p. 818, n. 1 New.
    Decided July 20, 1926.
    Appeal; from Seminole superior court—Judge Yeomans. October 20, 1925.

      M. E. O’Neal, A. B. Conger, for plaintiff in error.

      J. T. Goree, PL. A. Willcinson, contra.
   Bell, J.

J. J. Spooner filed in the office of the ordinary of Seminole County an application for a homestead under the Civil Code of 1910, §§ 3377 et seq. The application was accompanied by the usual schedule. The ordinary signed an order to the county surveyor of an adjoining county to lay off the homestead and to malee a plat of the same, and issued a citation, specifying a day for the hearing. On that day, the surveyor having made a return, Mrs. Henrietta Alday, a creditor, made an appearance, which, besides the caption or title and certain parts which are not here material, was as follows: “Now comes Mrs. Henrietta Alday and . . files these her objections to the homestead, and objects thereto for the reasons: . .

“3rd. For the reason that the life-estate of J. J. Spooner in and to the property claimed by him as exempt is far in excess of sixteen hundred dollars, as the property claimed as exempt is one thousand acres, and it is reasonably worth the sum of three dollars per acre per year rental, or three thousand dollars per year, and that tiie life-expectancy of J. J. Spooner, who is seventy-seven years of age, according to the Carlisle Mortality Tables as set forth in 70 Georgia Keports, page 845, is six and forty one-hundredths (6.40) years, making his life-estate of the value of nineteen thousand two hundred dolíais.

“4th. And for further reason that the said J. J. Spooner fraudulently omitted from his schedules a list of his property and assets, in that the said J. J. Spooner failed to schedule the crops growing on his life-estate, which objector shows to be of the reasonable value of two thousand dollars; and the said J. J. Spooner failed to schedule the rents that are due him from tenants on his life-estate, which objector alleges to be the sum of five hundred dollars; and the said J. J. Spooner failed and refused to schedule a large amount and number of promissory notes due him by his sons and son-in-law, said notes amounting to more than ten thousand dollars; and the said J. J. Spooner failed and refused to schedule the salary due him by his wife for managing her estate and .property, and failed and refused to schedule other property owned by the said J. J. Spooner; and the said J. J. Spooner failed to schedule his bank stock in the Bank of Donalsonville, and two shotguns, one rifle, and two pistols.

“5th. And for the further reason that there has been no surveyor’s plat as required by law, nor is the same attached to the application. And for all of said reasons the said J. J. Spooner is not entitled to the homestead applied for in said ease.”

The ordinary appointed appraisers to “examine the said property concerning which the objection is made, and to value the same,- and to make a return” of their findings- Their return as subsequently made was favorable to the applicant, and the ordinary approved it. Mrs. Alday thereupon filed an appeal to the superior court. -The appeal was dismissed by the superior court, on the ground that certiorari and not appeal was the proper remedy, and Mrs. Alday excepted. Before dismissing the appeal the court allowed Mrs. Alday to amend her objections by adding to paragraph 3 the following: “That the value of the premises so platted in the survey is far in excess of the amount set out by the surveyor, and is worth $19,200 in truth and in fact; and objector objects to said valuations as made by the surveyor of the value of the premises so platted.” The correctness of the judgment complained of will depend upon the nature of the objections filed with the ordinary.

Section 3386 of the Code of Georgia (1910) provides: “Should any creditor of the applicant desire to object to said schedule, for want of sufficiency and fullness, or for fraud of any kind, or to dispute the valuation of said personalty, or the propriety of the survey, or the value of the premises so platted as the homestead, he shall, at said time and place of meeting, specify the same in writing.” An appeal to the superior court from the judgment of the ordinary, setting apart or refusing to set apart a homestead, is an available remedy where the creditor has filed one of the objections provided for in this section. Fontano v. Mozley, 121 Ga. 46 (48 S. E. 707). Counsel for plaintiff in error point out that the objections in this case were to the “homestead” and not to the “schedule.” Section 3388 does not provide exclusively for objections to the schedule. The creditor is not required to object to the schedule, if he desires to dispute “the propriety of the survey, or the value of the premises so platted as the homestead.” (Whether this is also true where the creditor desires to “dispute the valuation of said personalty!’ is a question not involved in the present case.) It is not the duty of an applicant for a homestead to value the land embraced in his schedule, but that duty devolves upon the surveyor, whose action is subject to review by the appraisers. Wood v. Collins, 111 Ga. 32 (3) (36 S. E. 423). It follows that an objection to the schedule because of an alleged improper valuation by the applicant of the realty therein described would be futile to raise any issue for determination. Paragraph 3 of the creditor’s appearance raised no objection to the schedule upon any ground provided for, nor did it dispute the propriety of the survey, or the value of the premises as platted by the surveyor. Paragraph 5 alleged “that there has been no plat as required by law, nor is the same attached to the application.” It thus appears that the creditor’s paragraph 3 made no objection which can be classified as coming within the purview of section 3386. The amendment which was made to this paragraph can not help the matter, because the question of whether appeal was the proper remedy must be determined by the nature of the case at the time the appeal was taken. If the case was not appealable when the appeal was filed, it could not be made so by a subsequent amendment. So we agree with counsel for defendant in error, so far as the objection to the valuation is concerned. If no other objection had been made, it would have been proper to dismiss the appeal.

We can not concur, however, in the proposition that the objection made in the creditor’s paragraph 4 is not one of those contemplated by the section just referred to. While the pleading filed by Mrs. Alday recited that she was making “objections to the homestead,” ft specified as one of the grounds thereof that the applicant “omitted from his schedules a list of his property and assets,” in that he “failed and refused to schedule^” besides other property, promissory notes amounting to more than $10,000, due him by his “sons and son-in-law.” When the pleadings are construed as a whole, it appears to make' objection to the schedule “for want of sufficiency and fullness,” charging that the applicant had omitted property which ought to have been scheduled; and this is one of the objections which is provided for by section 3386. See Wood v. Collins, supra; Civil Code (1910), § 3380. The purpose of an objection to the schedule for want of sufficiency' and fullness is to prevent the allowance of the homestead (Civil Code (1910), § 3378 (3)), and it does not fail as an objection under § 3386 merely because it may be described as an “objection to the homestead.” “A pleading should be construed not simply by what it is called, but according to what it is.” Clark Milling Co. v. St. Louis Southwestern Railway Co., 33 Ga. App. 660 (2) (127 S. E. 783). The creditor, having made one objection under section 3386, was entitled to appeal from the judgment of the ordinary to the superior court. The court erred in dismissing the appeal.

Judgment reversed.

Jenleins, P. J., and Stephens, J., concur.


text:
    16981.
    Owens v. College Park Supply Company.
    Justices of the Peace, 35 C. J. p. 532, n. 40, 44; p. 729, n. 22, 27 New.
   Bell, J.

1. Although the amount claimed by the plaintiff in a suit in a justice’s court may be less than $50, where to such suit the defendant flies a plea setting up a counter-claim in which he seeks a judgment against the plaintiff for more than $50 but not exceeding the maximum jurisdictional amount of $100, and judgment is rendered for the plaintiff, the defendant may appeal the case to a jury in the superior court. Reedy v. Helms, 54 Ga. 122; Wheeless v. Carter, 120 Ga. 725 (48 S. E. 121) ; Croft v. Broxton Artificial Stone Works, 4 Ga. App. 92 (60 S. E. 1015) ; Bowers v. Williams, 17 Ga. App. 779 (88 S. E. 703); Civil Code (1910), §§ 4742, 4998.

2. But where to such a suit the defendant pleads a counter-claim in which he prays for a judgment against the plaintiff for an amount in excess of $100, he can obtain no relief in the justice’s court except to have “the claim of the plaintiff credited with that of the defendant, and thus defeat a recovery by the former.” Ware v. Fambro, 67 Ga. 515 (3); Civil Code (1910), § 4759. Under these circumstances, the defendant not being entitled to any judgment against the plaintiff on the counter-claim, the plaintiff’s claim fixes the amount in controversy; and, where that does not exceed $50, there can be no appeal to the superior court.

3. Where, to a suit on an account to recover $44.22 as the purchase-price of certain lumber and other building materials, the defendant pleaded that the plaintiff had not sold him the materials but had undertaken to build a house for him for a certain price stated, and was to construct the same with good material and in such manner that the house would bo habitable as a dwelling, “but, instead of doing this, plaintiff constructed said cottage of very inferior material and of inferior workmanship,” that the roof was so constructed that . it was “not sufficient to turn ordinary rains, and during and after such ráins the whole of the floor space of said house was drenched in and with rain-water, thereby injuring and damaging this [defendant’s] furniture and especially his beds and bedclothing,” and further pleaded that he had fully paid the plaintiff the price agreed on for constructing the building, and had “advanced plaintiff” “$79.84 more than the contract price,” and prayed “that he recover of the plaintiff the said amount of $79.84 plus $100 damage which is due to the failure of the plaintiff to build said cottage in terms of said contract, and that the defendant have judgment against the plaintiff for that sum,” and where, after a verdict in favor of the plaintiff for the amount sued for, the defendant appealed the case to the superior court, that court properly dismissed the appeal on the ground that the amount in controversy did not exceed $50. Compare Yon v. Baldwin, 76 Ga. 769.

4. The above conclusion is not altered by the circumstance that the facts as to the overpayment,' or as to the plaintiff’s breach and the defendant’s damage, may not have been well pleaded. Southern Railway Co. v. Gordon, 9 Ga. App. 469 (71 S. E. 763).

Decided July 20, 1926.

Appeal; from Fulton superior court—Judge E. D. Thomas. October 23, 1925.

J. J. Barge, for plaintiJI in error. W. S. Norlhcuit, contra.

Judgment affirmed.

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