text:
    19042.
    TRAMMELL et al. v. SHIRLEY, for use, etc.
    Decided November 14, 1928.

      J. P. Broolce, for plaintiffs in error.

      H. B. Moss, G. B. Walher, contra.
   Luke, J.

In this suit against the sureties on a constable’s bond the defense was non est factum. On the first trial of the case the. court directed a verdict for the defendants, and this court, in Shirley v. Trammell, 34 Ga. App. 776 (131 S. E. 190), held that the evidence was in sharp conflict as to when the bond was signed by the sureties, and reversed the judgment of the trial court.

When the case was tried the second time the jury found for the plaintiff, and the defendants filed a motion for a new trial, based on the general grounds and on the special ground that the court erred in not granting a new trial, because of newly discovered evidence. Error is assigned on the judgment overruling this motion.

The defendants admitted in open court that they signed the bond, but insisted that they signed it “as of August 25, 1923.” They further admitted that their principal on the bond defaulted between January 1, 1923, and August 25, 1923.

It is readily seen that the controlling question is whether or not the bond, at the time it was signed by the defendants, was dated January 1, 1923 or August 25, 1923. And, since the evidence was conflicting as to this crucial question, the jury’s verdict resolving that conflict in favor of the defendant in error can not be disturbed by this court for any reason assigned in the general grounds of the motion for a new trial.

The alleged newly discovered evidence referred to in the only special ground of the motion for a new trial is that of the son of the deceased principal on the bond. At the trial of the case, this witness testified for the plaintiffs in error, and we would, in any event, feel hesitant in holding that the trial judge abused his discretion in overruling this ground of the motion. However, this ground is not for our consideration. In the first place, the affidavit of the two witnesses in support of the witness upon whose evidence a new trial was sought is defective in that it fails to show the associates and means of knowledge of such witness. Civil Code (1910), § 6086; Hart v. State, 36 Ga. App. 673 (2) (137 S. E. 798); Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175); Carpenter v. State, 35 Ga. App. 349 (133 S. E. 350). In the second place, the affidavit of the defendants and their counsel as to diligence merely stated that they “did not know of the evidence . . before the trial of the ease therein stated, and that the same could not. have been discovered by the exercise of ordinary diligence.” This was a mere conclusion of the affiants, without basic facts from which the court could judge whether or not they could have discovered the evidence by the exercise of ordinary diligence; and the special ground also was defective for this reason. Hart v. State, supra; Taylor v. State, 132 Ga. 235 (3) (63 S. E. 1116); Tyre v. State, 35 Ga. App. 579 (134 S. E. 178).

This court is so often called on to pass upon motions for a new trial which contain grounds not in proper form for consideration, that, for the convenience of members of the bar, the writer of the foregoing opinion is permitted by his associates, who concur in the judgment of affirmance, to incorporate herein a brief digest of decisions on defects of form in such motions, which was prepared by Judge A. W. Cozart, of the Columbus bar.

Rule 1. (a) A ground of a motion for new trial can not be considered which contains an affirmative statement of fact material to the determination of the error assigned, unless it is unqualifiedly approved by the trial judge. Jordan v. State, 153 Ga. 167 (111 S. E. 417); Hayes v. Chapman, 147 Ga. 625 (95 S. E. 216).

(b) What are known as the “general grounds” do not have to be approved. Harris v. State, 120 Ga. 196 (47 S. E. 573).

A ground based on newly discovered evidence need not be approved by the trial judge in the sense that the recitals of facts in the affidavits offered in support of the ground are verified as true. Avery v. State, 11 Ga. App. 418 (75 S. E. 446).

(c) A ground of a motion for a-new trial may be approved or ' verified by the trial judge in the bill of exceptions, or by a certificate made upon or attached to the motion, or in a certificate attached to each separate ground. National Fire Ins. Co. v. Van Giesen, 132 Ga. 671 (64 S. E. 655); Strickland v. State, 8 Ga. App. 421 (1) (69 S. E. 313).

(d) “The usual general certificate of a trial judge approving as true all statements of fact contained in a special ground of a motion for a new trial will be construed by this court [the Court of Appeals] as approving as true only such statements in the ground as are purely statements of fact, and not as approving other allegations therein, which, although stated as facts, should properly be construed as mere conclusions of the movant based upon facts set forth in the ground.” Humphrey v. State, 24 Ga. App. 22 (99 S. E. 714); Rewis v. State, 27 Ga. App. 258 (108 S. E. 62).

(e) “Allowing” an amendment to a motion for a new trial is not an “approval” of grounds contained in the amendment. Wright v. State, 9 Ga. App. 235 (70 S. E. 968); Thornton v. Cordell, 8 Ga. App. 588 (70 S. E. 17); Pollard v. State, 125 Ga. 270 (54 S. E. 171), and cases cited.

(f) A ground of a motion for a new trial, though approved, is not valid, if it is contradicted by the record. Harris v. Vallee, 29 Ga. App. 769 (9) (116 S. E. 642); James v. Cooledge, 129 Ga. 860 (60 S. E. 182); Georgian Co. v. Kinney, 19 Ga. App. 732 (3) (92 S. E. 31).

While it is well settled that, where a conflict occurs between the recitals in a bill of exceptions and the record, the record controls (May v. State, 90 Ga. 704 (3) 17 S. E. 108; Rome Ry. &c. Co. v. King, 33 Ga. App. 385, 126 S. E. 294), yet where a conflict occurs in the certified record itself, as where the judge certifies to having given a specific instruction, and the general charge as also certified and sent up does not contain the language of such excerpt in the instruction embracing the law on the same subject, the record will be reconciled by assuming that both charges were given. Grooms v. Grooms, 141 Ga. 478 (3) (81 S. E. 210). Bohannan v. Knapp, 33 Ga. App. 702, 704 (127 S. E. 808).

(g) “Rulings upon the sufficiency of pleadings are not proper subject-matter for a motion for a new trial.” Coulson v. State, 13 Ga. App. 148 (2) (78 S. E. 1108), and citations; Tompkins v. American Land Co., 139 Ga. 377 (2) (77 S. E. 623), and cit.; Watkins v. Mims, 35 Ga. App. 170, 171 (132 S. E. 241).

“A judgment upon a demurrer cannot be considered upon a motion for a new trial.” Polhill v. State, 25 Ga. App. 383 (103 S. E. 469).

(h) Where the judge grants a nonsuit, “a motion for a new trial is not the proper remedy for testing the correctness of such ruling.” Buchanan v. James, 134 Ga. 475 (2), (3) (68 S. E. 72).

(i) “Attacks upon a decree furnish no ground of a motion for a new trial.” Fowler v. Johnson, 151 Ga. 122 (c) (106 S. E. 90).

Rule 2. “A motion for a new trial is a means of seeking to have a retrial, or re-examination, in the same court, of an issue of fact, or of some part or portion thereof, after decision by a jury, report of a referee, or-a decision by the court thereon. It is an application for a retrial of the facts of the case.” Buchanan v. James, supra; Herz v. Claflin Co., 101 Ga. 615 (5) (29 S. E. 33).

Rule 3. “Where a ease has been tried by a jury and a verdict rendered therein, and the losing party desires to test the sufficiency of the evidence to support the verdict, a motion for a new trial is indispensable.” Mackin v. Blalock, 133 Ga. 550 (4) (66 S. E. 265, 134 Am. St. R. 220); Jones v. Richards, 23 Ga. App. 560 (99 S. E. 11).

Rule 4. A ground of a motion for a new trial in regard to the refusal of a request to charge is not in proper form for consideration where it is not alleged in the ground that the requested charge was pertinent and applicable to the facts of the case. Killabrew v. State, 26 Ga. App. 231 (2) (105 S. E. 711); Caswell v. State, 27 Ga. App. 76 (7) (107 S. E. 560); Savannah &c. Ry. v. Davis, 28 Ga. App. 654 (2) (112 S. E. 907); Monroe v. Warten Cotton Co., 29 Ga. App. 358 (115 S. E. 279); Pulliam v. State, 30 Ga. App. 250 (3) (117 S. E. 822); Ward v. Gardner, 35 Ga. App. 569 (2) (134 S. E. 346); Coney v. State, 30 Ga. App. 132 (4) (117 S. E. 99).

Rule 5. A ground of a motion for a new trial complaining of the refusal of a written request to charge is not in proper form, where the ground contains no other statement as to the time of the request than that it was preferred, presented, or submitted to the coiurt “in proper time,” or “in due time,” or where it alleges merely that the request was “properly submitted.” These are mere conclusion of the plaintiff in error. Keese v. Mize, 27 Ga. App. 666 (4) (110 S. E. 417); Jones v. W. & A. R. Co., 23 Ga. App. 725 (3) (99 S. E. 388); Dixon v. Sol Loeb Co., 31 Ga. App. 166 (12) (120 S. E. 31).

The ground must affirmatively show that the written request was presented to the trial judge “before the jury retired to consider their verdict.”

Buie 6. The written request must be set out in the ground or attached thereto as a part thereof. Foskey v. State, 119 Ga. 72 (45 S. E. 967).

Rule 7. It must appear that the written request was sound and accurate as a proposition of law. It should be perfect. Macon, D. & S. R. Co. v. Joyner, 129 Ga. 683 (59 S. E. 902).

Rule 8. “Where a series of propositions are presented en bloc in a single request to charge, the court is not required to give them or any part of them, if any one of them is erroneous or inapplicable to the case on trial.” Western Union Tel. Co. v. Owens, 23 Ga. App. 169 (5) (98 S. E. 116); Thompson v. O’Connor, 115 Ga. 120 (5) (47 S. E. 242).

Rule 9. A ground of a motion for a new trial complaining that the charge of the court is misleading, confusing, or argumentative is too general to be considered, where it fails to allege wherein it was misleading, confusing or argumentative. Wade v. Eason, 31 Ga. App. 256 (120 S. E. 440); Riddle v. Sheppard, 119 Ga. 930 (3) (47 S. E. 201).

Rule 10. A ground of a motion for a new trial which complains of the admission, the failure to rule out, or the exclusion of testimony of a witness can not be considered where the name of the witness is not given in the ground. Bean v. State, 29 Ga. App. 260 (2) (114 S. E. 915); Russ v. State, 35 Ga. App. 476 (133 S. E. 748); Peeples v. Butler, 21 Ga. App. 310 (94 S. E. 278); Palmer v. State, 28 Ga. App. 567 (112 S. E. 154).

Bule 11. A ground of a motion for a new trial which complains of the admission of evidence is not .valid where the admissibility of the evidence was doubtful.

“It has long been the rule in this State when the admissibility of evidence is doubtful to admit it and leave its weight and effect to be determined by the jury.” McClelland v. State, 27 Ga. App. 783 (3) (110 S. E. 245); Mitchell v. State, 71 Ga. 128; Gilmer v. Atlanta, 77 Ga. 688.

Rule 12. A ground of a motion for a new trial complaining of the admission or rejection of evidence is not valid where it appears that the evidence was admitted or rejected on the request of the complaining party. The maxim “consensus tollit errorem” applies to such an assignment of error. Commercial City Bank v. Sullivan, 18 Ga. App. 608 (5) (90 S. E. 173); Threlkeld v. State, 128 Ga. 660 (58 S. E. 49).

The same rule applies to a charge given at the request of the complaining party. Gaskins v. State, 12 Ga. App. 97 (4) (76 S. E. 777); Howard v. State, 115 Ga. 244 (4) (41 S. E. 654, 90 Am. St. R. 121), and cit.; Laing v. Bodiford, 25 Ga. App. 460 (103 S. E. 743).

Rule 18. A ground of a motion for a new trial complaining of an error in the charge of the court is not valid where it appeal’s from the record that the error was cured when the motion was ruled upon. Garrett v. Coweta Fertilizer Co., 20 Ga. App. 343 (2) (93 S. E. 68); Dawson Paper Shell Pecan Co. v. Montezuma Fertilizer Co., 19 Ga. App. 42 (13) (90 S. E. 984).

Rule 14. A ground of a motion for a new trial is not in proper form for consideration unless it is complete in itself. Franklin v. State, 28 Ga. App. 460 (112 S. E. 170); Odum v. Rutledge, 16 Ga. App. 350 (85 S. E. 361).

A ground is not complete if, to be intelligible, it is necessary to refer to: (a) Other parts of the record. Sheppard v. State, 28 Ga. App. 735 (2) (113 S. E. 54); Powell v. State, 35 Ga. App. 245 (132 S. E. 919). (b) Brief of evidence. Cathey v. State, 28 Ga. App. 666 (4) (112 S. E. 915); Watkins Co. v. Mims, 35 Ga. App. 170 (3) (132 S. E. 241); Copeland v. Ruff, 20 Ga. App. 217 (2) (92 S. E. 955). (c) Other grounds of the motion. Dixon v. State, 28 Ga. App. 756 (113 S. E. 24). (d) Pleadings. McGuire v. State, 29 Ga. App. 192 (114 S. E. 719). (e) Charge of the court. Hawkes Co. v. Cowart Co., 21 Ga. App. 397 (94 S. E. 643); Head v. State, 144 Ga. 383 (87 S. E. 273); Thatcher v. Carolina Portland Cement Co., 21 Ga. App. 567 (94 S. E. 838).

Rule 15. “A ground of a motion for a new trial containing an extract from the charge of the court and alleging that the court erred in so charging, but which fails to point out wherein the excerpt quoted is erroneous, or why it should not have been given, or why different instructions should have been given, presents nothing for the consideration of a reviewing court.” Callaway v. Pearson, 21 Ga. App. 565 (94 S. E. 817); Mauldin v. Gainey, 15 Ga. App. 353 (8) (83 S. E. 276); Central of Ga. Ry. Co. v. Bond, 111 Ga. 13 (36 S. E. 299).

Rule 16. Where an extract from the charge is unsound as an abstract proposition of law,'it is necessary only to set it out and to allege that the court erred in so charging. Jones v. State, 135 Ga. 357 (6) (69 S. E. 527).

Rule 17. It has been repeatedly ruled that a ground of a motion for a new trial based on the admission or rejection of evidence presents nothing for adjudication, where such evidence is not set forth in the ground either literally or in substance, nor attached to the motion as an exhibit. Shaw v. Jones, 133 Ga. 446 (9) (66 S. E. 240); Patterson v. Farish, 34 Ga. App. 785 (131 S. E. 186).

Rule IS. “A ground of a motion for a new trial to the effect that the court erred in excluding the testimony specified as a whole is not a good ground, when a part of the testimony so specified is objectionable.” Jones v. Teasley, 25 Ga. App. 784 (1-b) (105 S. E. 46), and cit.

The same rule applies where the evidence is not the testimony of a witness.

Rule 19. The overruling of an objection to certain testimony of a witness, or other evidence, in bulk, some of which is not open to the objection made, is not groutad for a new trial. M., D. & S. R. Co. v. Anchors, 140 Ga. 531 (79 S. E. 153); Fambrough v. DeVane, 141 Ga. 794 (82 S. E. 249); Edenfield v. Brinson, 149 Ga. 377 (5) (100 S. E. 373), and cit.; Adams v. State, 27 Ga. App. 48 (107 S. E. 388), and cit.

Rule 20. A ground of a motion for a new trial complaining of the illegal admission of evidence is not valid unless it appears that an objection was made when the evidence was offered, and unless it appears what the objection was. Clare v. Drexler, 152 Ga. 419 (5) (110 S. E. 176); Norman v. McMillan, 151 Ga. 363 (4) (107 S. E. 325), and cit.; Hardy v. Hardy, 149 Ga. 371 (3) (100 S. E. 101). In certain cases it must appear that the objection was made promptly. Cheney v. Bank of Bremen, 25 Ga. App. 114 (102 S. E. 903); Birmingham Lumber Co. v. Brinson, 94 Ga. 517 (20 S. E. 437).

Rule 21. “A ground of a motion for'a new trial complaining of the rejection of testimony offered by the movant, where the motion for a new trial fails to show upon what ground the testimony was excluded or that the judge rejected it' upon his own motion, is not too defective to be considered by the reviewing court.” Morgan County Bank v. Poullain, 157 Ga. 423 (4) (121 S. E. 813).

Rule 22. In order for the exclusion of oral testimony to be considered as a ground fox a new trial, it must appear: (a) That a pertinent question was asked. (6) That the court ruled out the answer, (c) That a statement was made to the court at the time the question was asked, showing what the answer would be. (d) That the testimony was material, (e) That it would have benefited the complaining party. Griffin v. Henderson, 117 Ga. 382 (43 S. E. 712). An exception to the foregoing rule (or rules) may, in some eases, be made as to answers excluded on cross-examination, where the party is entitled to sift and test a witness, or may not know what the answer would be. Griffin v. Henderson, supra; Tillman v. Bomar, 134 Ga. 660 (2, 2-a) (68 S. E. 504). “The rule requiring the assignment of error to show what answer was expected, the materiality of the excluded evidence, and that the judge was informed thereof at the time of the ruling, does not apply to the examination of hostile witnesses, or to pertinent questions on cross-examination, where the party making the inquiry can not be expected to know what the witness would testify.” Bell v. Felt, 119 Ga. 498 (46 S. E. 642). (f) Where an exception to the rule is relied upon by the movant, the ground should aver that the witness was on cross-examination, or was hostile, as the case might have been in the particular case. (g) It must appear that the movant asked the question or offered to have the witness give the testimony which was excluded. Lowe v. Burden, 22 Ga. App. 679 (97 S. E. 106). (h) The name of the witness must be given. Hunter v. State, 148 Ga. 566 (97 S. E. 523). (i) The excluded testimony, or evidence, in substance or literally, must be set out iu the ground. Clare v. Drexler, supra; Cobb v. Coffey, 149 Ga. 264 (99 S. E. 864): (j) It must appear that the evidence was material to the issues involved. Bourquin v. Bourquin, 151 Ga. 575 (107 S. E. 767); Bowden v. Bowden, 125 Ga. 107 (53 S. E. 606). (k) It must appear that the exclusion of the testimony was prejudicial. Campbell v. Walker, 20 Ga. App. 88 (4) (92 S. E. 545); Middlebrooks v. Fish Tire Co., 31 Ga. App. 535 (121 S. E. 134). Of course, rules (i), (j), and (k) do not apply where the witness was on cross-examination, or hostile, if the exception is averred in the ground.

Rule 28. A ground of a motion for a new trial complaining of the exclusion of evidence (other than the testimony of a witness) must set forth in the ground: (a) The excluded evidence, literally or in substance. Danner v. Johns, 147 Ga. 667 (95 S. E. 233); Bostock v. State, 34 Ga. App. 595 (130 S. E. 221). (b) That the movant offered the evidence. Kimbrel v. State, 24 Ga. App. 696 (101 S. E. 920); Lowe v. Burden, 22 Ga. App. 679 (97 S. E. 106); Wight v. Schmidt, 111 Ga. 858 (36 S. E. 937). (c) That the court ruled the evidence out. Bowden v. Bowden, 125 Ga. 107 (53 S. E. 606); Griffin v. Henderson, supra, (d) That the evidence would have benefited the movant. Griffin v. Henderson, supra; Allen v. Kessler, 120 Ga. 319 (47 S. E. 900). (e) That the exclusion of the evidence was prejudicial to the movant. Campbell v. Walker, 20 Ga. App. 88 (4) (92 S. E. 545); Middlebrooks v. Fisk Tire Co., 31 Ga. App. 535 (121 S. E. 134). (f) That the evidence was material to the issues involved. Bourquin v. Bourquin, 151 Ga. 578 (2); Griffin v. Henderson, supra.

Rule 2D A ground of a motion for a new trial complaining of the illegal admission of evidence must set forth: (a) The evidence, literally or in substance. Clare v. Drexler, supra, (b) That the movant objected to the evidence at the time it was offered. Hardy v. Hardy, supra; Clare v. Drexler, supra. (c) That the opposing party offered the evidence. City of LaGrange v. Colter, 29 Ga. App. 577 (116 S. E. 204). (d) The ground of the objection urged by the movant before the court at the time the evidence was offered. Clare v. Drexler, supra; Hardy v. Hardy, supra, (e) That the court overruled the objection and admitted the evidence. Griffin v. Henderson, supra. (f) That the evidence was material and prejudicial to the movant, and how it was hurtful to the movant. Hunter v. State, 148 Ga. 566 (2) (97 S. E. 523); McGuire v. State, supra; Allen v. State, 29 Ga. App. 213 (2) (114 S. E. 583); Clare v. Drexler, supra; Mayor &c. of Gainesville v. White, 27 Ga. App. 16 (107 S. E. 571). (g) Where the evidence was the testimony of a witness, the name of the witness should be given. Clare v. Drexler, supra, (h) It should appear from the ground, by express averment or otherwise, that the inadmissibility of the evidence was not doubtful. Jasper County v. Butts County, 147 Ga. 673 (95 S. E. 254), and cit. (i) As a general rule, the objection to the evidence must be made promptly, and before the movant cross-examines the witness. Central of Ga. Ry. Co. v. James, 143 Ga. 753 (85 S. E. 920). But where the inadmissibility of the evidence does not appear until during the cross-examination, this last rule would not apply.

Rule 25. Where improper remarks prejudicial to the movant have been made in the presence of the jury by opposing counsel, and the trial judge has rebuked the offending counsel, and has instructed the jury that the remarks were improper, and to disregard them, but it is not probable that the rebuke of counsel and the instructions of the court to the jury have eradicated the injury, and where the complaining party promptly moves that a mistrial be declared on account of the improper remarks, and the court refuses to declare a mistrial, a ground of a motion for a-new trial on account of the refusal to declare a mistrial must set forth: (a) The improper remarks. (&) That they were made in the presence of the jury by opposing counsel, and the name of the opposing counsel should be set forth, (c) That the remarks were prejudicial to the movant. (d) That the remarks were not referable to any evidence introduced on the trial and were not authorized by the evidence, (e) That the movant made a motion for a mistrial before the verdict was rendered. (/) That it is probable that the injury was not eradicated by the instructions to the jury to disregard the remarks and by the rebuke of the offending counsel by the court. (g) That the court refused to grant a mistrial. Hunter v. State, 133 Ga. 78 (9) (65 S. E. 154); Hudson v. State, 101 Ga. 520 (3) (28 S. E. 1010); Morris v. Maddox, 97 Ga. 575 (2) (25 S. E. 487); Smoot v. State, 146 Ga. 76 (90 S. E. 715); Ivey v. State, 113 Ga. 1062 (39 S. E. 423, 54 L. R. A. 959); Butler v. State, 142 Ga. 286 (11) (82 S. E. 654). A ruling of the court must be invoked. Farmer v. State, 91 Ga. 720 (18 S. E. 987); Ivey v. State, supra.

As to proper practice where improper remarks are made by counsel, see Perdue v. State, 135 Ga. 277 (69 S. E. 184); Rogers v. State, 18 Ga. App. 332 (89 S. E. 460). “The ground of a motion for a new trial assigning error upon a remark of the solicitor-general, alleged to be improper, can not be considered, for the reason that it fails to aver that the comment or conclusion of the solicitor-general was not referable to any evidence adduced upon the trial.” Blount v. State, 18 Ga. App. 204 (2) (89 S. E. 78). “Where a remark of counsel in argument to the jury, alleged to be improper, is the basis of a ground of a motion for a new trial, the ground should aver that the remark was not referable to any evidence introduced on the trial.” Jabaley v. State, 26 Ga. App. 76 (105 S. E. 710). The ground of a motion for a new trial assigning error upon the remark of the solicitor-general, made in his concluding argument, alleged to be improper and inflammatory and prejudicial to the rights of the defendant, can not be considered for the reason that it fails to allege that the remark or conclusion of the solicitor-general was not authorized by the evidence in the case. Blount v. State, supra. In the absence of such an allegation, the solicitor-general’s remark will be regarded as a deduction from the evidence. Floyd v. State, 143 Ga. 286 (5) (84 S. E. 971).

Rule 26. A ground of a motion for a new trial complaining of the admission or rejection of evidence is not valid where it appears from the record that the error was cured by the trial judge in his charge. Belle Isle v. Kindig, 25 Ga. App. 293 (4) (103 S. E. 269); Norris v. Richardson, 151 Ga. 31 (105 S. E. 493). But there is an exception to this rule where it appears that the error was prejudicial on other issues. Norris v. Richardson, supra.

Rule 27. A ground of a motion for a new trial complaining of the admission of evidence is not valid where it appears that the evidence was later withdrawn or later excluded. Collins v. State, 27 Ga. App. 223 (107 S. E. 782). But there is an exception to this general rule where it appears that injury was done by admitting the evidence and that it is probable that the injury was not cured by the withdrawal of the evidence or by subsequently ruling it out. Thompson v. State, 12 Ga. App. 201 (4) (76 S. E. 1072); McDonald v. State, 72 Ga. 55.

Rule 28. A ground of a motion for a new trial complaining of the admission of evidence is not valid where it is based upon a fact unless the assignment of error shows that fact. Garrick v. Tidwell, 151 Ga. 294 (4) (106 S. E. 551).

Rule 29. A ground of a motion for a new trial complaining of the admission or exclusion of evidence which was offered to prove an uneontradicted fact is not valid. Ala. Great So. R. v. Hardy, 131 Ga. 238 (62 S. E. 71).

Rule 80. A ground of a motion for a new trial complaining of the admission of evidence which was admitted by the court conditionally or provisionally is not valid where it does not appear in the ground that the objection was renewed. Failure to renew the objection amounts to a waiver. Such evidence need not be ruled out by the judge ex mero motu. Davis v. State, 25 Ga. App. 532 (7) (103 S. E. 819); Quinn v. State, 22 Ga. App. 632 (97 S. E. 84); Stone v. State, 118 Ga. 705 (9) (45 S. E. 630, 98 Am. St. R. 145); Hix v. Gulley, 124 Ga. 547 (52 S. E. 890); Cawthon v. State, 119 Ga. 395 (7) (46 S. E. 897).

Rule SI. A ground of a motion for a new trial complaining of the admission or the exclusion of evidence is not valid where it fails to show who offered the evidence. City of LaGrange v. Cotter, supra; Sims v. Sims, 131 Ga. 262 (62 S. E. 192).

Rule 82. “A ground of a motion for a new trial in which error is assigned on the exclusion of certain testimony is insufficient when it does not appear from the ground itself that the exclusion of the testimony was prejudicial to the complaining party.” Campbell v. Walker, 20 Ga. App. 88 (4) (92 S. E. 545); Corona v. DeLaval Separator Co., 24 Ga. App. 684 (102 S. E. 44); Cathey v. State, 28 Ga. App. 666 (3) (112 S. E. 915); Parker v. State, 28 Ga. App. 673 (3) (112 S. E. 908); Middlebrooks v. Fisk Tire Co., supra.

Rule SS. A ground of a motion for a new trial complaining of the refusal of the court to direct a verdict is not valid. “It is never reversible error to refuse to direct a verdict.” Bennett v. Patten, 148 Ga. 66 (3-b) (95 S. E. 690).

Rule SJ/.. “The failure to give instructions to the jury not demanded by the evidence will, in the absence of a written request to so charge, in no event be cause for a new trial.” Cooper v. Nisbet, 119 Ga. 752 (3) (47 S. E. 173); Savannah Electric Co. v. Thomas, 30 Ga. App. 405, 418 (118 S. E. 481).

Buie SB. “It may be now considered as settled that this court will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground which involves purely questions of law, unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the ease. Unless the case can be brought within the exception just stated, it is useless for parties to bring before this court the judgment of a trial judge granting a first new trial.” Weinkle v. Brunswick &c. R. Co., 107 Ga. 367, 368 (33 S. E. 471); Parks v. Stevens, 21 Ga. App. 180 (94 S. E. 60). But see the exception where the first grant of a new trial rests solely on a question of law. Hiller v. Howell, 74 Ga. 174; Dilman v. Patterson Produce Co., 2 Ga. App. 213 (4) (58 S. E. 365).

Rule 36. Asa general rule, a ground of a motion for a new trial complaining of the refusal of a written request to charge is not valid where it appears that in the charge given the request was substantially covered; but there are certain exceptions to this rule: (a) “A specific charge which is legal and adjusted to a distinct matter in issue, . . and which may materially aid the jury, should be given as requested, although in principle and in more general and abstract terms it may be covered by other instructions given by the court.” Crawford v. State, 117 Ga. 247 (4) (43 S. E. 762); Kaufman v. Young, 32 Ga. App. 135 (2) (122 S. E. 822). (b) “A refusal to instruct the jury in accordance with a correct request, duly made in writing and peculiarly appropriate to the facts of the case, is, when the refusal probably resulted in harm to the party making such request, cause requiring the grant of a new trial, though the court gave in charge an abstract principle of law covering the request.” Central of Ga. Ry. Co. v. Goodman, 119 Ga. 234 (2) (45 S. E. 969); Metropolitan Street R. Co. v. Johnson, 90 Ga. 500 (5) (16 S. E. 49).

Rule 37. An assignment of error in a ground of a motion for a new trial is too general or too indefinite which alleges: (a) That “the court failed to charge the contention of the defendant.” Barton v. State, 35 Ga. App. 574 (134 S. E. 185). (b) That testimony was “wholly irrelevant, immaterial and inadmissible.” Manning v. State, 33 Ga. App. 612 (9) (127 S. E. 475). (c) That “the court refused to allow” a main witness to testify as to “a stated matter.” Miller v. Wellborn, 31 Ga. App. 507 (121 S. E. 129). (d) That the court erred in admitting “all the testimony tending to,” etc. Deal v. Montgomery, 31 Ga. App. 20 (3) (120 S. E. 26). (e) That the court erred in giving a certain instruction “without qualification.” Van Dyke v. Van Dyke, 31 Ga. App. 67 (4) (119 S. E. 436). (f) That the court erred “in failing to clearly and distinctly state to the jury the issues raised by the affidavit of illegality.” Wade v. Eason, 31 Ga. App. 256 (120 S. E. 440). (g) That the court refused to charge “the entire law of the case.” Clark v. State, 30 Ga. App. 633 (5) (118 S. E. 596). (h) That testimony was “illegal.” Cowart v. State, 30 Ga. App. 289 (117 S. E. 663). (i) That testimony was “highly prejudicial.” Cowart v. Slate, supra, (j) That testimony was “not competent,” or was “inadmissible.” Parker v. State, 28 Ga. App. 673 (4) (112 S. E. 908). (k) That “the damage claimed by the plaintiff was speculative and remote and incapable of accurate ascertainment.” Port Wentworth Terminal Corp. v. Leavitt, 28 Ga. App. 82 (5) (110 S. E. 686). (l) That a certain charge was not such “as the law and the facts of the case called for.” Wilson v. Clark, 26 Ga. App. 304 (2) (106 S. E. 8). (m) That the court failed to charge the “law” on a stated subject. Hudson v. State, 26 Ga. App. 596 (4) (107 S. E. 94). (n) That the court erred in admitting certain evidence “as to relevancy.” Corona v. DeLaval Separator Co., 24 Ga. App. 683 (4) (102 S. E. 44). (o) That the court erred “because the court failed to charge the law of circumstantial evidence.” Goen v. State, 24 Ga. App. 370 (100 S. E. 769). (p) That the court erred in refusing to allow counsel to ask a main witness “concerning” a specified matter. Carson v. State, 22 Ga. App. 743 (2) (97 S. E. 202). (q) That evidence was “inadmissible.” McDonald v. State, 21 Ga. App. 126 (6) (94 S. E. 262). (r) That the charge “did not correctly elucidate the contentions of counsel as to whether or not the contract was illegal.” Flowery Branch Gin Co. v. Shore, 20 Ga. App. 361 (3) (93 S. E. 70). (s) That the court erred in admitting evidence “of a character tending to show,” etc. Tolbert v. State, 16 Ga. App. 311 (85 S. E. 267). (t) That the charge as a whole “did not present in a clear and lucid manner the issues involved in the case.” Hill v. Harris, 11 Ga. App. 358 (11) (75 S. E. 518). (u) That certain instructions by the court were not authorized and were “otherwise illegal.” Mallock v. Kicklighter, 10 Ga. App. 605 (73 S. E. 1073). (v) That the court failed to charge the jury “the law of gifts and sales.” Allen v. State, 8 Ga. App. 284 (2) (68 S. E. 1009. (w) That the court erred because “the court did not caution the jury to disregard certain applause of the spectators.” Ravenel v. State, 153 Ga. 130 (3) (111 S. E. 643). (x) That certain instructions by the court were “confusing and misleading.” Hill v. Render, 33 Ga. App. 13 (7) (125 S. E. 79) (y) That “the court erred” in certain rulings. Cathey v. Stale, supra, (z) That a new trial is demanded by “the general countenance of the case.” Temples v. Central of Ga. Ry. Co., 19 Ga. App. 307 (7) (91 S. E. 502).

Rule 38. A timely preferred written request to charge is necessary to require the trial judge to charge on: (a) Application of rule of evidence to the testimony of a particular witness. Holmes v. State, 131 Ga. 806 (63 S. E. 347). (b) Application of doctrine of reasonable doubt in different propositions. Pressley v. State, 132 Ga. 64 (2) (63 S. E. 784). (c) Admission of one party in pleading given in evidence by the other party. Roper v. Roberts, 143 Ga. 128 (2) (84 S. E. 553). (d) Amplification of contention of party. Ga. & Fla. R. Co. v. Tapley, 144 Ga. 453 (2) (87 S. E. 473, L. R. A. 1916C, 1020). (e) Abandonment as illustrating adverse possession of land. Tarver v. Deppen, 132 Ga. 798 (7) (65 S. E. 177, 24 L. R. A. (N. S.) 1161). (f) Alibi where the evidence is weak. Jenkins v. State, 13 Ga. App. 82 (78 S. E. 828). Or where it is not sustained by the evidence. Young v. State, 125 Ga. 584 (2) (54 S. E. 82). (g) Accident, theory of, in charge on negligence. Savannah Electric Co. v. Jackson, 132 Ga. 559 (4-a) (64 S. E. 680). There is an exception to this rule where the defense of accident is directly involved. Conoly v. State, 10 Ga. App. 822 (74 S. E. 285); Hilton & Dodge Lumber Co. v. Ingram, 119 Ga. 652 (11) (46 S. E. 895, 100 Am. St. R. 204). (h) Admissions, scanning with care; and receiving confessions with caution. Baker v. State, 14 Ga. App. 578, 582 (81 S. E. 805); Thomas v. State, 150 Ga. 269, 271 (103 S. E. 244). But see Lucas v. State, 110 Ga. 756 (36 S. E. 87); Chapman v. State, 28 Ga. App. 107 (110 S. E. 332). There is an exception to this rule where the defendant’s conviction depends solely upon a confession. Rucker v. State, 2 Ga. App. 140 (2) (58 S. E. 295). (i) Admissions, effect of, coupled with explanatory, self-serving declarations. Bryan v. Jones, 134 Ga. 48 (2) (67 S. E. 399). (j) Accomplice, definition of, where he is the only witness connecting the defendant with the crime. Baker v. State, supra. (k) Assumption of risk by employee. So. Ry. Co. v. Holbrook, 124 Ga. 679 (4) (53 S. E. 203). (l) Burden of proof in a civil case. Hunter v. Mahaffey, 144 Ga. 185 (86 S. E. 538). But there is an exception to this rule. See Pope v. S. A. L. Ry., 21 Ga. App. 251, 255 (94 S. E. 311). Burden shifting. Albany Warehouse Co. v. Hillman, 147 Ga. 490 (94 S. E. 569); Pope v. S. A. L. Ry., supra, (to) Credibility of witnesses. Childs v. Ponder, 117 Ga. 553; Baker v. State, 14 Ga. App. 582. (n) Confessions. Cook v. State, 9 Ga. App. 208; Baker v. State, 14 Ga. App. 582. There is an exception to this rule when the conviction depends entirely upon h confession to connect the defendant with the crime. Rucker v. State, 2 Ga. App. 140 (2). But see Thomas v. State, 150 Ga. 269, 271 (103 S. E. 244). (o) Circumstantial evidence, where positive evidence was also introduced. Fuller v. State, 10 Ga. App. 34 (2). (p) Character, good, of defendant. Wilkerson v. State, 14 Ga. App. 475 (2). (q) Character of the deceased for violence. Tillman v. State, 136 Ga. 59 (70 S. E. 876). (r) Comparative negligence. Savannah Electric Co. v. Crawford, 130 Ga. 421 (60 S. E. 1056); Central of Ga. Ry. Co. v. Hill, 21 Ga. App. 233 (94 S. E. 50). There is an exception to this rule where the question of comparative negligence .is raised by the pleadings. Powell v. Berry, 145 Ga. 696 (5) (89 S. E. 753, L. R. A. 1917A, 306); Hilton & Dodge Lumber Co. v. Ingram, 119 Ga. 652 (46 S. E. 895, 100 Am. St. R. 204). (s) Cautionary instructions. Powers v. State, 138 Ga. 624 (75 S. E. 651). (t) Circumstantial evidence in a civil case. Cowart v. Strickland, 149 Ga. 397 (4) (100 S. E. 447, 7 A. L. R. 1110). (u) Definitions of: Technical terms, as a general rule. Holmes v. Clisby, 121 Ga. 241 (48 S. E. 934, 104 Am. St. R. 103); Roberts v. State, 114 Ga. 450 (3) (40 S. E. 297). Ordinary care and diligence. A. & B. Ry. Co. v. Smith, 2 Ga. App. 294 (58 S. E. 542). Misdemeanor. Hembree v. State, 17 Ga. App. 117 (86 S. E. 286). Felony. Carver v. State, 14 Ga. App. 267 (80 S. E. 508). Accomplice. Baker v. State, 14 Ga. App. 578 (1) (81 S. E. 805). (v) Distinctions: Between actual and legal residence. Forlaw v. Augusta Naval Stores Co., 124 Ga. 261 (2) (52 S. E. 898). Between total and partial divorce. Zachary v. Zachary, 141 Ga. 404 (81 S. E. 120). (w) Defense, special. Wiley v. State, 3 Ga. App. 120 (4) (59 S. E. 438). Defense, particular theory of, suggested by certain evidence. Baker v. State, supra; Williams v. State, 120 Ga. 870 (48 S. E. 368). (x) Defense, theory of, raised only by defendant’s statement. Lott v. State, 18 Ga. App. 747 (2) (90 S. E. 727). There is an exception to this rule where it is the only defense in the case. Thornton v. State, 18 Ga. App. 744 (90 S. E. 489). (y) Discrediting dying declarations. Howard v. State, 144 Ga. 169 (4) (86 S. E. 540). (z) Evidence, limitation of, to one purpose for which introduced. Central of Ga. Ry. Co. v. Brown, 138 Ga. 107 (2) (74 S. E. 839). (aa) Expert testimony. Godwin v. A. C. L. R. Co., 120 Ga. 747 (48 S. E. 139). (bb) Effect of receipt in full. Howland v. Bartlett, 86 Ga. 669 (12 S. E. 1068). (cc) Effect of positive and negative testimony. Baker v. State, supra. (dd) Findings, separate, where defendants jointly indicted and 'do not sever. Welborn v. State, 116 Ga. 522 (42 S. E. 773). (ee) Impeachment. Baker v. State, supra. (ff) Plaintiff and defendant being equally at fault, plaintiff can not recover. Central of Ga. Ry. Co. v. Brown, 141 Ga. 553 (4) (81 S. E. 857). But see So. Cotton Oil Co. v. Caleb, 143 Ga. 585 (85 S. E. 707). (gg) Process of reducing a sum to present worth. L. & N. R. Co. v. Trout, 141 Ga. 121 (80 S. E. 622). (hh) Pule as to weight of evidence. Killian v. State, 19 Ga. App. 750 (3) (92 S. E. 227). (ii) That jurors are judges of law and facts in a criminal case. Reddick v. State, 11 Ga. App. 150 (74. S. E. 901). (jj) What is not law. Reddick v. State, supra, (kk) State of feelings. Baker v. State, supra.

Bule 89. Applications for a new trial on newly discovered evidence are not favored. Great care should be taken in the preparation of the ground of a motion for a new trial on account of newly discovered evidence. The essentials of such a ground are: (a) Affidavits of witnesses by whom new facts are to be proved should be produced, or satisfactory reason given for their non-production. Burge v. State, 133 Ga. 431, 432 (66 S. E. 243). (b) It must appear that the newly discovered evidence is not merely cumulative. Burge v. State, supra, (c) It must appear that the evidence is not solely to impeach the credit of the witness. Burge v. State, supra. (d) It must appear that the evidence was discovered by movant after the rendition of the verdict against him. Burge v. State, supra, (e) That the evidence was newly discovered, not merely that a certain named witness was newly discovered. Burgess v. State, 93 Ga. 304 (20 S. E. 331); Jinks v. State, 117 Ga. 714, 716 (44 S. E. 814). (f) It must appear by the affidavit of the movant and of each of his counsel that the affiant did not know of the existence of the alleged newly discovered evidence before the trial and before the verdict, and that it could not have been discovered by the exercise of ordinary care. The affidavits showing diligence should not state conclusions, but should set out what was done by the movant and his counsel to discover the new evidence. Taylor v. State, 132 Ga. 235, 237 (63 S. E. 1116); Patterson v. Collier, 77 Ga. 292 (3 S. E. 119); Tyre v. State, 35 Ga. App. 579 (134 S. E. 178), and cit.; Civil Code (1910), § 6086. (g) It must appear that the probable effect of the new evidence, if another trial be had, will be to produce a different verdict. Burge v. State, supra. But see “ultimate criterion,” Todd v. Jackson, 24 Ga. App. 519 (101 S. E. 192). (h) It must appear that the evidence is material to the issues involved. Civil Code (1910), § 6085. (i) It must appear that the application was “brought to the notice of the court within the time now allowed by law for entertaining a motion for a new trial.” Civil Code (1910), § 6085. (/) If the newly discovered evidence is that of a.witness, affidavits as to his residence, associates, means of knowledge, character and credibility must be adduced, and the names of the “associates” must appear in the affidavits. Burge v. State, supra; Ivey v. State, 154 Ga. 63 (113 S. E. 175); Tyre v. State, supra. (k) The affidavits must be properly entitled in the cause, or otherwise identify the case. Hill v. McBurney Oil & Fertilizer Co., 112 Ga. 792 (38 S. E. 42, 52 L. R. A. 398). (Z) The affidavits must be made a part of the record, and the better practice is to attach them to the ground and make them a part thereof by direct reference thereto. Follow the rules laid down touching this matter in Glover v. State, 128 Ga. 1 (57 S. E. 101).

In the case at bar the court did not commit error for any reason assigned, and his judgment overruling the motion for a new trial is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    19100.
    WIDINCAMP v. THE STATE.
    Decided November 14, 1928.

      E. L. Williams, for plaintiff in error.

      W. B. Gibbs, solicitor-general, contra.
   Luke, J.

A policeman testified that he saw the defendant and one Hughes enter a water-closet in the City of Baxley, and that when he pushed open the door to the closet he saw the defendant sitting on the toilet, holding in his hand a pint-bottle containing a little whisky. The defendant stated that he went in the closet to relieve himself, and that Hughes said, “What is that in that bottle in that hens-nest in the corner ?” He further stated that Hughes handed him the bottle of whisky and he took a drink; that it was not his whisky, and that he did know it was in the closet.. Hughes testified that he was in the closet with the defendant; that he knew the whisky wüs in the closet because “he had been there some time that evening before with Widincamp and took a drink;” and that he did not know whose liquor it was. Brint Carter testified that he had seen the liquor in the closet two or three days before Widincamp was arrested, but that he did not touch it.

It would serve no good purpose to state the evidence as to another transaction involving circumstantial evidence. The evidence stated sustains the verdict of guilty. A case somewhat analogous is that of Lambert v. State, 37 Ga. App. 174 (139 S. E. 95).

Judgment affirmed.

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


author: Bloodworth, J.

text:
    19104.
    PERRY v. LOTT.
    Decided November 14, 1928.

      G. A. Johns, for plaintiff in error. Joseph D. Quillian, contra.
   Bloodworth, J.

(After stating the foregoing facts.) We will discuss only the question dealt with in the second headnote. The undisputed evidence shows that the Packard car belonged to the defendant; that the driver was his servant; that the servant took the car away from home by direction of the master; that at the time of the accident he was driving at the rate of 40 miles an hour, at the intersection of two streets, in a city; and that, without giving any warning, he struck the Eord car of the plaintiff and practically demolished it. In Fielder v. Davison, 139 Ga. 511 (77 S. E. 618), it is said: “If the owner of an automobile is sued for damages on account of an injury caused by it while driven by his chauffeur, the rules of law touching master and servant and the liability of the former for the act of the latter are to be applied.” This court held in Rape v. Barker, 25 Ga. App. 362 (1) (103 S. E. 171), that “whether or not the owner of an automobile is liable for damage caused by it which results from'the negligence of the person operating it depends upon whether the person driving it was the agent or servant of the owner and engaged upon the business of the owner at the time the negligence occurred. If he was such agent or servant and engaged upon such business, the owner is responsible for injuries to persons or property caused by his negligence in operating the automobile.” See the 2d headnote in this case which is copied from Gallagher v. Gunn, 16 Ga. App. 600 (1) (85 S. E. 930). In Fielder v. Davison, supra, quoting from Long v. Nute, 123 Mo. App. 204, 209-210 (100 S. W. 511), it was said: “Where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the usual manner such machines are operated, the presumption naturally arises that he is running the machine in the master’s service. If he is not so running it, this fact is peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes he is in possession of. It would be a hard rule, in such circumstances, to require the party complaining of the tortious acts of the servant to show by positive proof that the servant was serving the master and not himself.” (Italics ours.) In Stewart v. Baruch, 103 N. Y. App. Div. 577 (93 N. Y. Supp. 161), it is said: “In an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of his being struck by an automobile while crossing a city street, the fact that the defendant was the owner of the automobile and that the chauffeur in charge thereof was in his employ, is sufficient to establish prima facie that the chauffeur was acting within the scope of his employment at the time.” In the case at bar the evidence for the plaintiff made a prima facie case. The defendant sought to overcome by his evidence this presumption. He testified that on the day of the collision he directed the servant to take his car to the filling station, have the oil drained out and refilled, and take it back home; that the filling station was about three blocks from his home; that the place where the collision occurred was four or five blocks from the filling station; that he had no business where the collision occured; and that he did not direct the driver to go there. There is no evidence as to what route was pursued by the driver; whether this was a slight or a gross deviation from the direct route to and from the residence of the defendant and the filling station. If the deviation was slight, the master would still be liable. See Limerick v. Roberts, 32 Ga. App. 755 (1-b) (124 S. E. 806), and cases cited. Moreover, the evidence does not show that the driver “was engaged in any work or enterprise independent of the business of the master.” Brown v. Meikleham, 34 Ga. App. 207 (128 S. E. 918). However, whether or not the defendant successfully overcame the presumption against him was a question for the jury, and their verdict shows that they answered it in favor of the plaintiff. See Jackson v. Service Laundry Co., 35 Ga. App. 760 (134 S. E. 832).

Judgment affirmed.

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


text:
    19105.
    JOLLY v. THE STATE.
    Decided November 14, 1928.

      Norman E. English, for plaintiff in error.

      Charles E. Garrett, solicitor-general, contra.
   Bloodworth, J.

1. Ground 1 of the amendment to the motion for a new trial alleges that the court erred in admitting in evidence, over objection, the following: “I put Hubert Bawls on the defendant’s trail, and I had cause to do that.” The only objection then urged to this evidence was that “it is not permissible for a witness to testify something indirectly, by inference, that would not be admissible directly as evidence.” As against this objection the court did not err in admitting this evidence. The ground is incomplete. It is not made to appear to what the witness was testifying “indirectly, by inference.” In this ground of the motion other reasons than the one stated above are urged why the evidence is inadmissible, but these reasons can not be considered, as it does not affirmatively appear that they were urged and passed upon at the trial. Atlanta Life Ins. Co. v. Jackson, 34 Ga. App. 555 (2) (130 S. E. 378); Langston v. State, 153 Ga. 127 (1) (111 S. E. 561); Milliken v. State, 34 Ga. App. 596 (130 S. E. 347), and cases cit’ed on page 597. Moreover, even should we concede that it was error to admit this evidence (which we do not), it is not of such materiality, when all the evidence is considered, that its admission requires the grant of a new trial.

2. Special grounds 2 and 3 of . the motion for a new trial are specifically abandoned in the brief of counsel for plaintiff in error.

3. The verdict has the approval of the trial judge, and this court can not say that there is no evidence to support it. In Rogers v. State, 101 Ga. 562 (28 S. E. 978), Judge Cobb said: “Applications for new trials on the ground that the verdict of the jury is contrary to evidence are addressed to a sound legal discretion to be exercised by the trial judges. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere where there is any evidence which would justify the jury in reaching the conclusion which is set forth in the verdict. While in many cases we would probably not have rendered the verdict returned, and, if we were authorized to pass upon the case as on appeal, would render here a different judgment, still, under the established practice of this court as required by the law of this State, we can not overrule a trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he endorses the finding of the jury which tried the case in his presence. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful. The wisdom and discretion of the trial judge is sufficient for us to endorse his judgment in cases of this character.” See also Hendrix v. State, 37 Ga. App. 166 (139 S. E. 101).

Judgment affirmed.

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


author: Bloodwoeth, J.

text:
    19109.
    Hord et al. v. United States Fidelity & Guaranty Co.
   Bloodwoeth, J.

1. The judge presiding when this case was first tried in the municipal court of Atlanta properly allowed the amendments to the original petition, and the petition as amended was not subject to any ground of the demurrer, nor was it subject to dismissal upon the ground that the “plaintiff’s petition as amended did not set forth a legal cause of action against these defendants,”

Decided November 14, 1928.

McDaniel & Neely, Thomas M. Stubbs, for plaintiffs in error.

Shelf er & Dunaway, Bryan & MiddlebrooJcs, contra.

2. Neither of the two grounds of the motion for a new trial in the municipal court of Atlanta, based upon the rejection of evidence, is complete and understandable within itself, and they can not be considered by this court. Sisk v. Sisk, 37 Ga. App. 369 (140 S. E. 520).

3. The judge who tried the case in the municipal court of Atlanta did not err in directing a verdict for the plaintiff, nor did the appellate division of the municipal court, for any reason assigned, err in failing to reverse the judgment of the trial judge on appeal.

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

Judgment affirmed.

Broyles, O. J., concurs. Lulce, J., disqualified.


text:
    19113.
    HEARD v. THE STATE.
    Decided November 14, 1928.

      B. B. Forrester, F. W. Feeney, for plaintiff in error.

      Jule Felton, solidtor-general, contra.
   Bloodworth, J.

The verdict has the approval of the trial judge, and we can not say that there is no evidence to support it. In Rogers v. State, 101 Ga. 561 (28 S. E. 978), Justice Cobb said: “Applications for new trials on the ground that the verdict of the jury is contrary to evidence are addressed to a sound legal discretion to be exercised by the trial judges. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere where there is any evidence which would justify the jury in reaching the conclusion which is set forth in the verdict. While in many cases we would probably not have rendered the verdict returned, and, if we were authorized to pass upon the case as on appeal, would render here a different judgment, still, under the established practice of this court as required by the law of this State, we can not overrule a trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he-endorses the finding of the jury which tried the case in his presence. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful. The wisdom and discretion of the trial judge is sufficient for us to endorse his judgment in cases of this character.”

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    19116.
    Southern Railway Company v. Crow.
    Decided November 14, 1928.

      Ed Quillian, Wheeler & Kenyon, for plaintiff in error.

      Jones & Reid, B. Frank Whelchel, contra.
   Bloodwortii, J.

The evidence was in conflict, “but the issues were for the jury, and there being evidence to authorize their verdict, the court did not err in overruling the motion for a new trial, based upon the general grounds only.” Western & Atlantic Railroad Co. v. Barnett, 20 Ga. App. 616 (2) (93 S. E. 260); see Allen v. State, 37 Ga. App. 94 (139 S. E. 95); Perkins v. Attaway, 14 Ga. 28 (9).

Judgment affirmed.

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


text:
    19119.
    MILLS v. BARKER.
    Decided November 14, 1928.

      Sims & Berman, for plaintiff.

      T. M. Smith, Troutman & Troutman, for defendant.
   Bloodwortii, J.

Mrs. Mills sued Mrs. Lillian Barker and her husband Dr. Barker. She alleged in part that the defendants owned an apartment house in the city of Atlanta; that about 2.3Q p. m. one afternoon she was leaving the apartment and “stepped 'in a hole about four inches wide and about three inches deep, being a broken place in the concrete step,” which caused her to fall down the length of the steps to the bottom, severely injuring her. She further alleged that she could not have avoided the injury by the use of ordinary care, and that she did not contribute to it in any way; that defendants were negligent in not repairing the said premises after they had been notified of the defective and dangerous condition of the premises, and in “their failure to keep said premises in repair and in a safe condition.” The defendants filed a plea denying liability, and alleging that Dr. Barker had no interest in the apartment house. At the close of the evidence the court directed a verdict for the defendants; and the plaintiff excepted to the directing of the verdict in favor of Mrs. Barker.

We will not discuss the first headnote.

The direction of the verdict for the defendants was proper. The evidence clearly showed that Dr. Barker had no interest whatever in the apartment house, and his lack of liability was thus clearly proved. Was the direction of the verdict in favor of Mrs. Barker correct? The evidence shows that the plaintiff and her mother lived in different apartments but in the same apartment house. The plaintiff swore: “My front door was right in her back door, and I could go right out from my front .into her back door.” It appears from the evidence that the plaintiff and her mother were leaving the apartment house “in broad daylight about 2.30 p. m.,” and while on an uncovered porch at the very top step she stepped in a hole about four inches wide and three inches deep and fell and was injured. This hole was not concealed, but was plainly apparent. In her petition the plaintiff alleges, as shown above, that she could not have avoided the injury to herself by ordinary care. Could she? She swore: “My mother and myself came out of her front door at the same time, and I hesitated to see if I had the key, and then we started down the steps, and she and the baby were right over to the left and I was going right down one step and stopped to look back to see if she had shut her glass doors, which was the front door, and as I started to go down my heel hung in this place and threw me to the ground. I had already stopped to look back. It was the very top step that my heel hung in.” That the plaintiff stepped in the place which caused her to fall seems due to her own carelessness in not watching where she walked. When all the evidence is considered, it is apparent that the plaintiff, by the exercise of ordinary care, could have avoided the injury caused by the alleged negligenc of the defendants. In Americus, Preston & Lumpkin Railroad Co. v. Luckie, 87 Ga. 7 (13 S. E. 105), Justice Lumpkin said: “It seems to be-the dear meaning of our law that the plaintiff can never recover in an action for personal injuries, no matter what the negligence of the defendant may be, short of actual wantonness, when the proof shows he could by ordinary care, after the negligence of the defendant began,, or was existing, have avoided the consequences to himself of that neglignce.” See also Civil Code (1910), § 4426; Ball v. Walsh, 137 Ga. 350 (73 S. E. 585); Athens Ry. & Electric Co. v. McKinney, 16 Ga. App. 741 (86 S. E. 83); Hendricks v. Jones, 28 Ga. App. 335 (111 S. E. 81); Avary v. Anderson, 31 Ga. App., 402 (120 S. E. 683).

Judgment affirmed.

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


text:
    19123.
    WILLIAMS v. DENNIS.
    Decided November 14, 1928.

      W. Pml Miller, for plaintiff in error.
   Bloodworth, J.

Williams gave to Dennis a check for $63.50 in part payment for certain cattle, and then ordered the bank upon which the check was drawn not to pay it. Dennis brought suit on the check in a justice’s court. The defendant filed a plea denying indebtedness, and further pleaded that plaintiff had damaged him in the sum of $75 because of certain representations made as to the value of the cows. After a verdict for the plaintiff for $30, an appeal to the superior court was entered by the defendant. On the trial in the superior court the defendant admitted “the execution of the check, and assumed the burden.” When he did this it became incumbent upon him to prove the truth of the allegations in his plea. This he failed to do, and the court properly directed a verdict for the plaintiff. Wilson v. Wilson, 23 Ga. App. 94 (2) (97. S. E. 558), and cit.

Judgment affirmed.

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


author: Luke, J. Broyles, C. J.,

text:
    19124.
    KING v. THE STATE.
    Decided November 14, 1928.

      M. U. Mooty, for plaintiff in error.

      W. Y. Atkinson, solicitor-general, Smith & Taylor, contra.
   Luke, J.

The defendant was indicted for assault with intent to murder, and was convicted of unlawfully shooting at another. The only ground of the motion for a new trial insisted upon by his counsel is that the court erred in charging as follows: “If the guilt of the accused has not been established by the State, and you believe that he acted in self-defense, under the law to which I have called your attention, it would be your duty to acquit him, and the form of your verdict would be, ‘We, the jury, find the defendant not guilty/ ” This charge is alleged to be error because the court stated conjunctively two theories under which the defendant might have been acquitted, when as a matter of law he would have been entitled to an acquittal under either theory; that is to say, he would have been entitled to an acquittal if his guilt had not been established by the State; and he would have been entitled to an acquittal if he had acted in self defense.

We are well aware that “a verbal inaccuracy in a charge, resulting from a palpable slip of the tongue, and which clearly could not have misled the jury, is not cause for a new trial.” So. Ry. Co. v. Merritt, 120 Ga. 409 (47 S. E. 908). Some other cases controlled by this principle are: Lothridge v. Varnadore, 140 Ga. 131 (2) (78 S. E. 721); L. & N. R. Co. v. Culpepper, 142 Ga. 275 (2) (82 S. E. 659); Douglas v. McCurdy, 154 Ga. 814 (7) (115 S. E. 658); Duke v. Hogan, 155 Ga. 360 (1) (116 S. E. 598); Benton v. State, 158 Ga. 41 (5) (122 S. E. 775); Adams v. State, 34 Ga. App. 144 (3) (128 S. E. 924). A reading of the foregoing cases shows that each of them comes well within the rule that the verbal inaccuracy clearly could not have misled the jury. After a careful study of the brief of evidence and the charge of the court in the case sub judice, we do not think that it can be concluded with any degree of certainty that the jury was not misled by the excerpt under consideration, coming as it does at the very end of the charge, and being a final statement of the conditions under which the defendant should be acquitted.

Judgment reversed.

Bloodworth, J., concurs.

Broyles, C. J.,

dissenting. In the light of the charge as a whole and the facts of the case, I do not think the verbal inaccuracy in the charge could have misled or confused the jury. The verdict was amply authorized by the evidence, and in my opinion the judgment should be affirmed.


text:
    19137.
    ALABAMA GREAT SOUTHERN RAILROAD CO. v. CONNER.
    Decided November 14, 1928.

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

T. A. Conner brought suit in a justice’s court against the Alabama Great Southern Railroad Company for $100, claiming that the defendant had damaged him in that amount by killing a mule which belonged to him. The defendant denied liability. There was an appeal to the superior court. On the trial in the superior court the evidence showed that the mule, which was not in the charge of any one, approached the railroad from the east; that when he reached the railroad crossing he turned north and proceeded on the railroad between the main track and the passing track, the distance between these tracks being about. 8 feet; that upon reaching a cattle-guard, which was about 20 feet from the crossing, the mule fell down, and when “the mule fell down it fastened in the cattle-guard;” that “a train ran by from the north while the mule was in the cattle guard;” and that this train passed about 10.30 p. m. A witness swore that after the train passed, “the mule was struggling around there in the cattle-guard, and I went for help and took the mule out.” The mule was alive at 1.30 a. m. the next morning, but was found dead that morning about 1 or 8 o’clock. The judge charged the jury in part as follows: “If this mule walked into this stock-gap and was injured thereby, and from this injury it died, and that alone appearing under the evidence, subject to the rules given you in charge, there could be no recovery; .but if this mule fell in the stock-gap and was so frightened by the negligent running of the train and the injury was caused in that way, after the mule was in the stock-gap, and the engineer or employees of the railroad company, in operating the train in question, by the exercise of ordinary care could have seen or ought to have seen the predicament the mule was in, and did not exercise such care, and, as a result of the negligence or failure of the railroad company to exercise such care, this mule, by such negligence, was so frightened that it killed itself, then and in that event there might be a recovery in this case.” This portion of the charge is alleged to be error because it is not the law of the case as shown by the evidence, is not adjusted to the facts as shown by the record, was confusing and misleading, and did confuse and mislead the jury; that there is no evidence that the mule was frightened by the negligent running of the train after the mule was in the stock-gap; that the approach of the train did not cause the mule to step in the stock-gap, and if it was frightened after it fell in the stock-gap by the running of the train, this could not have caused the mule to kill himself. The contention of the plaintiff in error is meritorious. There is absolutely no evidence that the mule, after it fell in the stock-gap, was so frightened by the negligent running of the train that it killed itself. Such a charge was not authorized by the evidence and was calculated to mislead and confuse the jury, and was such an error as requires the grant of a new trial. We have adopted the second headnote of the decision in Southern Marble Co. v. Pinyon, 144 Ga. 260 (86 S. E. 1086), as the lieadnote to this case. The principle there announced is well established by numerous decisions of our appellate courts; among them Central Ga. Power Co. v. Cornwell, 139 Ga. 1 (2, 2a) (76 S. E. 387, Ann. Cas. 1914A, 880); East v. State, 31 Ga. App. 181 (120 S. E. 15).

Judgment reversed.

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


author: Bloodwoeti-i, J.

text:
    19143.
    Benford v. The State.
    Decided November 14, 1928.

      R. D. Peagin, W. E. Bartlett, for plaintiff in error.

      Charles 11. Garrett, solicitor-general, contra.
   Bloodwoeti-i, J.

1. “There being no proof of a plenary confession by the accused, but, at most, evidence only of incriminatory admissions, it was such an error to charge the law relating to confessions as to require the grant of a new trial. These incriminatory admissions are not conclusive; and proof of inculpatory admissions will not authorize a charge upon the subject of confession. Owens v. State, 120 Ga. 296 (48 S. E. 21; Riley v. State, 1 Ga. App. 651 (57 S. E. 1031), and decisions cited.” Porter v. State, 11 Ga. App. 246 (74 S. E. 1099). Under the foregoing ruling the judge erred in charging the law relating to confessions. See also Beasley v. State, 28 Ga. App. 564, 565 (112 S. E. 168), and cit.; Chislon v. State, 19 Ga. App. 608 (91 S. E. 893).

2. It is not necessary to pass upon the other grounds of the motion for a new trial, as the issues raised therein are not likely to recur on another trial.

Judgment reversed.

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


text:
    19155.
    JOURNIGAN v. THE STATE.
    Decided November 14, 1928.

      Ben Smith, for plaintiff in error.

      W. G. Parker, solicitor, contra.
   Bloodworth, J.

1. When the entire charge given to the jury and all the facts and circumstances of the case are considered, there is no merit in any of the special grounds of the motion for a new trial.

2. “There was some slight evidence authorizing the verdict; and, the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732). See Smith v. Barr, 32 Ga. App. 53 (8) (122 S. E. 626); Johnson v. State, 33 Ga. App. 148 (125 S. E. 734).

Judgment affirmed.

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


text:
    19159, 19160.
    SMITH v. THE STATE (two cases).
    Decided November 14, 1928.

      G. S. Glaxton, J. B. Cook, for plaintiffs in error.
   Luke, J.

Lonnie Smith, Arthur Smith, and Tom Cobb were jointly charged with the larceny of “150 pounds of hog meat, consisting of two shoulders and eight hams of the value of $50.” The meat was alleged to have been taken on May 1, 1928, and to have been the property of G. J. Watkins. Lonnie Smith and Arthur Smith each elected to sever, and each was tried and convicted. Each filed a motion for a new trial, based solely upon the general grounds, and the trial judge overruled both motions.

The substance of the evidence follows: On the night of May 1, 1928, the meat described in the accusation was taken from the smoke-house of G. T. Watkins. On the same night, at 11.10 o’clock, the three accused parties were seen by George Webb passing his house. They were coming from the direction of the Watkins place and going in the direction of the Fountain barn, which was about a mile from the Watkins place. Arthur and Tom were each carrying something in an old sack. On May 2 Watkins saw the fresh tracks of three persons in the road near his house and smokehouse. There was nothing unusual about the tracks of two of the persons, but one footprint of the third person was made by a left shoe without a heel. In the Lonnie Smith case, which was tried first, George Webb testified: “I did not know what was in the sacks. All I know is that I saw them go by with sacks on their shoulders.” In the Arthur Smith case Webb testified: “The sacks had something in them, I could not say just what, but I judge it was meat. It looked like meat, and I thought then it was meat.” On May 2 Watkins procured a search warrant and searched the house of the widow Cobb, where the defendants lived, and had them arrested. One of the shoes worn by Smith had no left heel, and the other was worn on the right heel. The only meat found was some fried ham, which Watkins thought was his meat, because “it smelled like it.” On May 3 the tracks of these three persons were followed by Watkins and others from near his house, through a field by J. W. Smith’s house, on out to the public road; thence by the house of George Webb and thence across Fountain’s field to his barn. No real search of the barn was made, but “one of the party went in and looked around, but did not find anything.” On May 13 a few pieces of the missing meat, recognized by certain marks on it, were found in Fountain’s barn, in a sack. There is evidence that all three of the accused parties wfere seen leaving Adrian at about nine o’clock on the night of May 1, going in the direction of Watkins’ place, as well as in the direction of several • other places at the same time. Adrian is about two miles from the Watkins place, and about five eighths of a mile from the home of the widow Cobb. There is some other evidence, which throws little or no light on the transaction involved. Lonnie Smith’s shoes were not in evidence, and they were never actually fitted into any of the tracks found. The record is very meagre as to the barn where the meat was found. Apparently it belonged to Mr. Fountain, was on his place, and was some distance from where the accused persons lived.

We are always reluctant to interfere with the verdicts of juries, but a careful study of the records in the two cases at bar leads us to conclude that in neither case is the defendant’s guilt proved as the law requires. Penal Code (1910), § 1010, reads: “To warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused.” The court erred in overruling the motion for a new trial in each case under consideration.

Judgment reversed.

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


text:
    19161.
    Leggett et al. v. The State.
    Decided November 14, 1928.

      E. H. Williams, for plaintiffs in error.

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

Tlie bill of exceptions in this case was filed in the office of the clerk of the lower court on February 13, 1928, and was returnable to the March term, 1928, of the Court of Appeals. The bill of exceptions (together with the record) should have been transmitted to that term of the Court of Appeals in time to have been heard during that term, but it was not received by the clerk of that court until the 19th day of July, 1928, upon which date it was filed in the office of the clerk of the Court of Appeals. The bill of exceptions having reached .the Court of Appeals after the close of the docket of the term to which it was returnable, the writ of error must be dismissed. Adkins National Bank v. Harmon, 19 Ga. App. 657 (91 S. E. 1051).

Writ of error dismissed.

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


text:
    19168.
    CUMBIE v. THE STATE.
    Decided November 14, 1928.

      Smith & Millican, for plaintiff in error.

      Emmett Smith, solicitor, contra.
   Luke, J.

The accusation in this case contains two counts. The first count charges that M. C. Cumbie did “operate a motor-vehicle, the same being a four-door Buick Sedan automobile, before registering said automobile in the office of the Commissioner of Vehicles of the State of Georgia and obtaining a license to operate the same.” The second count charges that the defendant used said automobile upon the highways of Carroll County, Ga., “without at all times displaying the number plate assigned to it on the rear of said machine in such position so as not to swing, and plainly legible at all times.”

The general verdict of guilty was a conviction on both counts. Tooke v. State, 4 Ga. App. 495 (3-a) (61 S. E. 917).

Ground 7 of the motion for a new trial complains of the following instruction to the jury: “The question of the ownership of the car is immaterial in this case, as to whether M. C. Cumbie owned it, or whether the corporation referred to was the owner, or whether it was sold to the boy Eoy Cumbie.” The core of the exception to this instruction is that this was not a correct statement of the law as to count 1 of the accusation, and denied Cumbie his defense that he was not the owner of the automobile.

Count 1 is drawn under the act of 1927 (Ga. L. 1927, p. 228; Park’s Code Supp. 1928, § 828(uu-19)). That law reads: “Every owner of a motor-vehicle . . shall, on or before the first day of February in each year, before he shall operate such motor-vehicle, tractor, trailer, or motorcycle, register such vehicle in the office of the Commissioner of Vehicles, and obtain a license to operate the same for the ensuing year; and every chauffeur employed to operate motor-vehicles shall likewise register and obtain a license as hereinafter provided.” There is no intimation in the record that the defendant was a chauffeur, and there was evidence (which was disputed) that he owned the automobile.

The ownership of the automobile being in issue, regardless of the fact that the statute was correctly read to the jury in another part of the charge, we think that the charge was calculated to lead the jury to believe that as to count 1 the ownership of the automobile made no difference; and the charge was therefore prejudicial and likely to mislead the jury in their consideration of count 1 of the accusation. Because of this error a new trial is granted. The other special grounds need no further elaboration than is given them in the headnotes; and, since the case goes back for another trial, the general grounds of the motion for a new trial will not be discussed.

Judgment reversed.

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


text:
    19177.
    Kersey, alias Leeds, v. The State.
   Bloodworth, J.

The bill of exceptions was filed in the office of the clerk of the trial court on February 16, 1928. It was served on the solicitor-general on the same day. Under the Civil Code (1910), § 6153, it should have been transmitted to the reviewing court within fifteen days from that date, or by March 2, 1928. The writ of error was erroneously made returnable to the Supreme Court. It did not reach the clerk of that court until July 12, 1928, after the dockets of both the Supreme Court and the Court of Appeals for the March term had been closed. It was by order of the Supreme Court transferred to this court on July 30, 1928. As the case did not reach this court for hearing at the term to which it was by law returnable, it must be dismissed. Atkins National Bank v. Harmon, 19 Ga. App. 657 (91 S. E. 1051).

Decided November. 14, 1928.

II. L. Causey, T. J. Townsend, A. J. Tuien, for plaintiff in error.

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

Writ of error dismissed.

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


author: Bloodworth, J. Broyles, C. J.,

text:
    19187.
    CARTER v. THE STATE.
    Decided November 14, 1928.

      W. II. Bedgood, J. P. Ilighsmith, for plaintiff in error.

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

An accusation was preferred in the city court of Baxley, in which the plaintiff in error was charged with “having and possessing liquor.” He pleaded guilty, and the judge imposed upon him the following sentence: “Whereupon it is considered, sentenced, and adjudged by the court, that the defendant W. T. Carter do pay within three days a fine of $350, and all costs of this prosecution, and twelve months on the chain-gang, said chain-gang sentence to be suspended pending good behavior and payment of said fine, and then be discharged, or, in default of such payment, that said defendant do work in the chain-gang on the public works of said county or on such other public works as the county authorities may employ the chain-gang, for and during the full term of twelve months, and then be discharged; and it is further ordered that this sentence begin and be counted from the time of the reception of said defendant in the chain-gang under this order, The defendant may be discharged at any time on payment of said fine and cost. Sentence pronounced and signed this 15 day of November, 1927.” The defendant paid the fine and costs as provided in the sentence. On July 21, 1928, he was brought before the judge of the city court, and the judge passed the following order: “It appearing -to the court, upon investigation in the above-stated case, after due notice to defendant, and he appearing before me, and upon said hearing it being made to appear satisfactorily to the court, by sworn testimony, that since the passing of sentence in the above-stated ease on Nov. 15, 1927, that said defendant has violated the terms of the suspension of said sentence by having possession of. liquor and making liquor, it is ordered by the court that the suspension part of said sentence be and the same is hereby revoked and said defendant is hereby required to serve the sentence of twelve months on the chain-gang as in said sentence provided.” The bill of exceptions recites that “Whereupon plaintiff in error was held in custody and incarcerated by the sheriff.” The plaintiff in error filed a bill of exceptions, assigning error on the order and judgment of July 21, 1928, and the case is here for review.

A motion was made by the defendant in- error to dismiss the bill of exceptions, on the ground that this court “has no jurisdiction to pass upon said case, there being no final judgment excepted to.” As the judgment which it is sought to review is not a final judgment, this motion must prevail. See Jackson v. State, 27 Ga. App. 648 (110 S. E. 423). If the accused had any remedy, it was by writ of habeas corpus. This was the remedy pursued in Kemp v. Meads, 162 Ga. 55 (132 S. E. 533), and Scott v. McClelland, 162 Ga. 443 (133 S. E. 923). The sentence of November 15, 1927, was in the alternative, and provided for the payment of a fine, or in default thereof that the defendant work in the chain-gang for twelve months. The accused “complied with said original sentence passed upon him November 15, 1927, by paying the said fine of $350 and all costs.” Under the express terms of this sentence the payment of the fine and costs was a full and complete compliance therewith.

Writ of error dismissed.

Luke, J., concurs.

Broyles, C. J.,

dissenting. In my opinion the writ of error should not be dismissed. I think that the judgment should be affirmed, under the rulings in Kemp v. Meads, and Scott v. McClelland, supra.


author: Bloodwortit, J.

text:
    19207.
    SMITH v. THE STATE.
    Decided November 14, 1928.

      Hewlett & Dennis, T. F. Bowden, for plaintiff in error.

      John A. Boyloin, solicitor-general, John H. Hudson, J. W. Le-Craw, contra.
   Bloodwortit, J.

(After stating the foregoing facts.) An examination of the indictment will show that the alleged false swearing consists of the statement that “all bills incurred for labor and materials used in the construction of said house have been paid in full,” and that the defendant knew that this was false. To authorize a conviction it was necessary for the State to prove these allegations, and that the defendant, knowing that they were false, did absolutely, wilfully and falsely swear that they were true. The motion for a new trial contains a number of grounds, in several of which more than one reason is alleged why a new trial should be granted. Each of grounds 1, 3, and 5 seeks to raise a constitutional question, but it is well settled in this State that “a constitutional question can not be raised for the first time in a motion for a new trial.” Western & Atlantic R. Co. v. Henderson, 36 Ga. App. 679, 681 (137 S. E. 855), and cit. The foregoing decisions refer specifically to cases in which it was sought, in a motion for a new trial, to raise constitutional questions; but without these specific rulings it is well settled by rulings of both this court and the Supreme Court that “ a ground of a motion for a new trial complaining of the admission of evidence, which fails to disclose that the objection taken thereto was urged before the trial court at the time of the ruling complained of, is not sufficient.” Glasco v. State, 137 Ga. 336 (1) (73 S. E. 578). See Gray v. State, 33 Ga. App. 596 (1) (127 S. E. 414); Grace v. McKinney, 112 Ga. 425 (2) (37 S. E. 737); Lamkin v. Clary, 103 Ga. 631 (5) (30 S. E. 596). The ruling in the foregoing cases disposes of grounds 1, 3, and 5 so far as the constitutional questions are concerned. Ground 1 complains also of testimony of a witness who swore: “The deed that I spoke of is recorded in this book on page 499; this is the loan deed that I witnessed.” This evidence was objected to on the ground that “the writing or the record within the book or the book itself was the best evidence.” Even if the writing or the record within the book or the book itself had been offered in evidence and there had been objection to its admission, to make a ground of a motion for a new trial based upon its admission complete it would have been necessary for the ground itself to set forth the evidence objected to, “either in the motion itself or in an exhibit thereto, in such manner that the question of its admissibility may be decided without reference to other parts of the record.” Thompson v. State, 118 Ga. 330 (2) (45 S. E. 410); Sisk v. Sisk, 37 Ga. App. 369 (1) (140 S. E. 520); McNeal v. State, 165 Ga. 302 (140 S. E. 885). Thus it will be seen that this ground of the motion is not complete. In ground 2 of the motion the court is alleged to have erred in admitting in evidence an affidavit which is not set forth literally or in substance or attached to the ground as an exhibit. Under the ruling in the Thompson, Bisk, and McNeal cases, supra, this ground presents nothing for consideration. The three cases just referred to dispose also of that portion of ground 3 which complains of the admission in evidence of “a certain book” on the ground that “the deed itself was the best evidence.” This ground alleges also that “such evidence was immaterial and irrelevant.” Such an assignment of error is too general to be considered. Wilson v. McConnell, 36 Ga. App. 767 (138 S. E. 244), and cases cited. . Moreover, the record shows that this deed had been sent to New York (to be held there), and was therefore beyond the jurisdiction of the courts of this State. Ground 4 of the motion for a new trial is not complete and understandable within itself. It refers to the testimony of I. N. Jenkins, who testified in part as follows: “As I recall it, we furnished him, for that house at 263 Atwood Avenue, lime, cement, plaster, oak flooring, and some metal lathes and flooring, that class of material.” Who is I. N. Jenkins? What connection, if any, did he have with the case ? Who are “we”, and who is “him” referred to in the evidence just quoted? Was this evidence relevant and material, and was it harmful to the cause of the accused? To find answers to these questions it would be necessary to look to other portions of the record; and that this court is not required to do. Wilson v. McConnell, supra; Cambron v. State, 36 Ga. App. 785 (3) (138 S. E. 280), and cases cited; Russ v. State, 35 Ga. App. 476 (1) (133 S. E. 748); Manning v. State, 33 Ga. App. 640 (1). In addition to an effort to raise a constitutional question in ground 5, it is alleged in this ground that the court erred in admitting in evidence “a certain itemized statement.” The Thompson, Sisk, and McNeul cases, supra, dispose of this assignment of error, and also dispose of the assignment of error in ground 7, based on the admission of “a certain slip;” the assignment of error in ground 8, which complains of error in admitting “a certain ledger sheet,” and the assignment in ground 9 on the admission of “two affidavits.” There is nothing in the 6th ground of- the motion for a new trial, which alleges error in the refusal of the judge to declare a mistrial, that requires that the case be tried again. The excerpts from the charge embraced in grounds 10 and 11 are not erroneous when read in connection with the remainder of the charge.

There is some evidence to support the verdict, and the motion for a new trial was properly overruled.

Judgment affirmed.

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


text:
    19221.
    Wages v. The State.
    Decided November 14, 1928.
   Bloodworth, J.

The defendant was convicted on circumstantial evidence of possessing intoxicating liquor. The evidence did not exclude every reasonable hypothesis save that of the guilt of the accused, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, 0. J., and Buhe, J., concur.

Wolver M. Smith, James W. Arnold, for plaintiff in error.

Pemberton Cooley, solicitor-general, contra.


text:
    19235.
    Cothren v. The State.
    Decided November 14, 1928.

      A. J. Tuten, Homer L. Causey, for plaintiff in error.

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

1. There is no error requiring the grant of a new trial, in either of the excerpts from the charge of Avhich complaint is made. 2. A verdict supported by any evidence, hoAvever slight, and approved by the trial judge, can not be interfered with by this court. There is evidence to support the verdict in this ease.

Judgment affirmed.

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


author: Bt.oodwortii, J.

text:
    19241.
    Gooch v. The State.
    Decided November 14, 1928.

      M. Felton Hatcher, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Bt.oodwortii, J.

1. A motion for a continuance because of absence of a witness was overruled. Even if it be conceded that the motion to continue was a good one, a new trial should not be ordered, as the ground of the motion for a new trial in which this ruling is complained of shows that “the court issued attachment and. the witness was brought into court before the trial.”

2. Under the qualifying notes of the trial judge to grounds 5, 6, and 7 of the motion for a new trial, there is nothing in either of these grounds that requires the grant of a new trial.

3. There is no merit in ground 8.

4. When all the facts are considered, the court did not err in refusing to declare a mistrial.

5. This court can not say that there is no evidence to support the verdict; and the motion for a new trial was properly overruled.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    18085.
    Eason v. Kicklighter, administrator, et al.

    Decided November 16, 1928.

      F. A. Tuten, J. B. Gain, M. L. Gherlcas, for plaintiff.

      M. M. Price, G. L. Coiuart, W. G. Hodges, for defendants.
   Jenkins, P. J.

Under the answers returned by the Supreme Court to the questions certified to it in this case, the court properly dismissed the petition for an accounting, brought to the court of ordinary against the administrator of the plaintiff’s deceased guardian. See Eason v. Kicklighter, 167 Ga. .. (144 S. E. 770).

Judgment affirmed.

Stephens and Bell, JJ,, concur.


text:
    18717.
    STEINER, for use, etc., v. BLAIR.

      Decided November 16, 1928.

      J. C. & E. E. Edwards, for plaintiff.

      Eamillon Eimzey, for defendant.
   Jenkins, P. J.

Steiner, for the use of Landers, filed a- suit against Mrs. Emma Blair upon a mortgage note, praying for a general judgment against the defendant, and for a special lien •upon the property described in the mortgage note. The defendant filed a plea of non est factum. On the trial the plaintiff offered in evidence the mortgage note, which had been properly recorded in the office of the clerk of the superior court of Habersham county, but offered no proof of its execution. It was objected to upon the ground that a plea of non est factum had been filed, and that no proof of the execution of the instrument had been offered. The court sustained the objection, and, no further proof being offered by the plaintiff, granted a nonsuit.

It is insisted by able counsel for the plaintiff in error that the instrument sued upon in this case, having been properly executed and.properly recorded was, under the provisions of sections 3261 and 4210 of the Civil Code (1910), admissible in evidence without any sort of proof of its execution, despite the defendant’s timely plea of non est factum, and that consequently the eoiftrt erred in rejecting it. Section 4210 of the Civil Code provides that “a registered deed shall ho admitted in evidence in any court in this State without further proof, unless the maker of the deed, or one of his heirs, or the opposite party in the cause will file an affidavit that the said deed is a forgery, to the best of his knowledge and belief, when the court shall arrest the cause and require an issue to be made and tried as to the genuineness of the alleged deed.” By section 3261 of the Civil Code, “mortgages, when duly executed and recorded, shall be admitted in evidence under the same rules as registered deeds.” The affidavit of forgery provided for by section 4210 of the code may be filed by either party to a cause in which a registered deed is offered in evidence, or by the maker of the proffered deed, or one of his heirs, whether parties to the cause or not; and the effect of such an affidavit is to raise for trial a special collateral issue which must be heard and determined before the instrument is admitted or rejected. When the affidavit is filed the “burden of proof as to the genuineness of the deed is upon the party asserting it, and the fact that a deed so attached is recorded does not change the onus.” (Italics ours.) Holland v. Carter, 79 Ga. 139, 141 (3 S. E. 690). But a party against whom a deed is offered in evidence is not obliged to file an affidavit of forgery, unless the deed is the basis of the action. If the instrument be collateral in its nature, he can permit it to be introduced in evidence, and then attack it by introducing any competent evidence to impeach it. Hollis v. Stevens, 36 Ga. 463; Sibley v. Haslam, 75 Ga. 490, 493; Anderson v. Cuthbert, 103 Ga. 767 (30 S. E. 244). In the latter event, however, the burden of disproving the genuineness of the deed rests upon the attacking party. Williams v. Rawlins, 10 Ga. 491; Haithcock v. Sargent, 145 Ga. 84 (2) (88 S. E. 550); Jett v. Hart, 152 Ga. 266 (2) (109 S. E. 654). It would seem, therefore, that the provisions of section 4210 of the code really have application only in cases where a recorded deed is collaterally introduced in evidence, and do not refer to instruments forming the basis of the action. Under that section, a deed, when offered, may be attacked by affidavit of forgery by the opposite party, whether plaintiff or defendant, and even by one who is not a party to the cause if he is the maker of the deed or an heir of the maker of the deed. But if the instrument, whether it be a deed, note, or mortgage, is the basis of the action, its genuineness can not be disputed or attacked by the defendant unless he files a plea of non est factum, which is “a denial of the execution of the instrument sued upon.” Civil Code (1910), §§ 5650, 5676; Matthews v. Edwin Bates & Co., 93 Ga. 319 (20 S. E. 320). Thus it would seem that the provisions of section 4210 have application only to the determination of a collateral issue made by the offering in evidence of a recorded instrument not forming the basis of the action, and do not have application in a case where the only issue made by the pleadings relates to the genuineness of the instrument sued upon. Accordingly, the provisions of this code section can not be taken or construed to vary the general rule to the effect that where the execution of an instrument sued on is denied on oath, there must, before it can be introduced in evidence, be some proof of its execution, after which the issue made under the plea must be determined by the jury according to the preponderance of the evidence.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18735.
    HERRING MOTOR COMPANY INC. v. BELIN.
    Decided November 16, 1928.

      George L. Salados, M. B. Peacock, Bennel & Peacock, for plaintiff in error.

      Gowart & Durden, contra.
   Jenkins, P. J.

1. “Time is not generally of the essence of a contract; but, by express stipulation or reasonable construction, it may become so.” Civil Code (1910), § 4268 (8). Where a time is fixed for delivery, but there is no express.stipulation that it shall be of the essence of the contract, it is a matter of construetion as to whether the time fixed is of the essence of the contract. Alabama Construction Co. v. Continental Car &c. Co., 131 Ga. 365, 368 (62 S. E. 160); Augusta Factory v. Mente, 132 Ga. 503, 509 (64 S. E. 553). Where no time is fixed for delivery, or the contract is indefinite as to the time, the law implies that it shall he within a reasonable time, and what is a reasonable time is a matter of fact, to be determined by a jury under all the circumstances of the ease. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (58 S. E. 200); Georgia Agricultural Works v. Price, 11 Ga. App. 80, 85 (74 S. E. 718); Edison v. Plant, 35 Ga. App. 683 (3) (134 S. E. 627).

2. Where the plaintiff entered into an agreement with an automobile dealer whereby the dealer was to take the plaintiff's old car at an agreed valuation of $600, $300 of which was to be applied to the purchase of a new car, and the remaining $300 to be paid, as was done, to the plaintiff in cash, the new car to be delivered “on or about three to six months,” and where, the new car not having been delivered by the dealer, the plaintiff, within two days after the expiration of the six-months period, brought suit for the remaining $300, which, under the agreement, was to be allowed on the purchase-price of the new car, alleging in his petition that the defendant had failed and refused to deliver the automobile contracted for, the petition was not subject to demurrer, nor was the verdict for the plaintiff unauthorized, on the theory that the suit was prematurely brought, since, even though under the terms of the agreement time might not properly be taken to be of the essence of the contract, it was for the jury to say, under the charge of the court, what, under the circumstances, amounted to a reasonable time for performance by the defendant. The facts and circumstances in the instant case differ from those recited in Cobb Lumber Co. v. Sunny South Grain Co., 36 Ga. App. 140 (135 S. E. 759), where it was held that the delay of a single day in the shipment of goods which were to be delivered on a given date, “or as ordered out” by the vendee, would not void the rights of the vendor, either as a matter of law, on the theory that time was of the essence of the contract, or as a matter of fact on the theory that the delivery was not made within a reasonable time. In the Cobb Lumber Co. case not only was the tifne for delivery indefinite, but control of the shipment lay altogether within the power of the vendee until the day prior to the date of actual shipment, with the exclusive right on the part of the vendee up to that time to accelerate or defer shipment at his will. In the instant case the vendor was given exclusive latitude as to time of delivery “on or about three to six months,” but having failed to deliver within the ultimate six months limit, it was for the jury to say if the additional two days’ delay was unreasonable. Moreover, there was evidence in the instant case on behalf of the plaintiff, admitted without objection, tending to establish an absolute refusal by the defendant to perform, such as would authorize the verdict on the theory of an anticipatory breach of the contract by the defendant, permitting the plaintiff to sue at once and recover his entire damages, without waiting for the expiration of the time for performance. Phosphate Mining Co. v. Atlanta Oil &c. Co., 20 Ga. App. 660 (93 S. E. 532); Southern Ry. Co. v. Branch, 9 Ga. App. 310 (71 S. E. 696); Napier v. Strong, 19 Ga. App. 401 (S) (91 S. E. 579).

Judgment affirmed.

Stephens and Bell, JJ., concur.