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Opinions in ga-app Volume 26

1. Tlie court did not err in admitting testimony as complained of in the 1st, 2d, and 3d grounds of the amendment to the motion for a new trial. Indeed, we should not consider the 2d of these grounds, because it is incomplete, in that it does not name the witnesses as to the admission of whose testimony c'omplaint is made. Practically the same evidence complained of in the 3d ground was admitted w...
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1. This was a suit by a woman to recover the value of her lost time, and for the pain and suffering she endured, following an alleged tort committed by an employee of the railroad. One ground of the motion for a new trial is that “ the court erred in sustaining an objection made by the plaintiff’s counsel to the following question, viz.: ‘ How long have you been married,’ propounded by movant’s co...
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1. Continuances for the absence of counsel are not favored. A strict showing is required, especially where competent counsel other than the absent counsel has been secured and it is not shown that the defendant was injured by the absence of' his original or leading counsel. The discretion of the judge in refusing to continue a case on the ground of providential absence, on account of sickness, of ...
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1. For no reason assigned did the court err in overruling any of tlie grounds of the amendment to the motion for a new trial which relate to the charge of the court as given or to the refusal to charge as requested. 2. None of the grounds of the motion for a new trial which relate to the admission or exclusion of evidence shows reversible error. *10Decided November 11, 1920. Rehearing denied Decem...
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Only the 3d and 4th headnotes need elaboration. The plaintiff in error and others were indicted for burglary. Upon his separate trial he was convicted. His motion for a new trial was overruled, and he excepted. The 3d headnote deals with the refusal of the judge to declare a mistrial. One of the attorneys assisting the State in prosecuting the case made in his argument to the jury the following re...
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1. The alleged newly discovered evidence being cumulative and impeaching in its character, the trial judge did not abuse his discretion in overruling this ground of the motion for a new trial. 2. There is sufficient evidence to support the verdict, which has the approval of the judge who tried the case, and the judgment is Affirmed. Broyles, G. J., and Lwhe, J., oonowr. ...
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The first headnote alone needs elaboration. The motion for a new trial and the qualifying note of the judge show the following facts: The accused was on trial for murder and was in the custody of the sheriff. All the evidence had been introduced and the defendant’s statement made before the noon recess of the court. During the recess the defendant was placed in jail by the sheriff, and through ove...
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In reply to questions certified by this court to the Supreme Court, that court, on November 12, 1920, answered as is set forth in the headnotes to this case. No merit appears in any of the other grounds of the motion for a new trial; but on account of the error stated in the second headnote, a new trial of the case is required. Judgment reversed. Luke and Bloodworih, JJ., concur. ...
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(After stating the foregoing facts.) To a certified question from this court the Supreme Court answered, in substance, that the question as to the jurisdiction of the trial court was not raised in that court by the usual general grounds of the motion for a new trial, and that it could not be considered when made for the first time in this court. See full opinion of the Supreme Court, 150 Ga. 673 (...
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Under the facts of the case as disclosed by the record, the court did not err in overruling the certiorari. Judgment affirmed. Luke and Bloodworth, JJ., concur. ...
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1. While a party seeking to prove a fact should, on demand , of the other party, be required to produce the highest and best evidence of the fact, yet parol evidence of a collateral fact which is also evidenced by writing is sometime admissible. 2. Jones on Evidence (1st ed.), 193, § 203; Pollock v. Skelton, 15 Ga. App. 1, 13 (82 S. E. 381). See also Mason v. State, 1 Ga. App. 534(4) (58 S. E. 139...
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Under all the particular facts of the case as disclosed by the record, the court did not err in awarding a nonsuit. Judgment affirmed. Lulce and Bloodworth, JJ., concur. From the evidence it appeared that in January, 1918, the defendant purchased the wagons, trucks,' and other property of the Southern Ice Company, which for some years and until the sale of its property had been regularly using...
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1. The petition as amended, was not subject to the demurer interposed. £. Under the pleadings and the evidence, the direction of the verdict for the plaintiff was not error for any reason assigned. Judgment affirmed. Luke and Bloodworth, JJ., concur. 2. From the evidence it appears that in May, 1917, the defendant bought from the plaintiff tire automobile in question, giving another automobile...
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Under the decision in Marsh v. Fletcher Co., 17 Ga. App. 735 (88 S. E. 416), and the authorities there cited, and the facts of the instant case, the court erred in* not discharging the defendant upon his own recognizance. Judgment affirmed. Luke mid Bloodworth, JJ., concur. In his testimony the defendant denied that the ring in question was or had ever been the property of the plaintiff. He te...
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(After stating the foregoing facts.) Under our view of the ease it is unnecessary to discuss the ruling of the court on the special demurrer, since the general demurrer was properly sustained and the case dismissed. That this is true is, we think, clearly shown by the dissolution agreement or bill of sale, which writing, it will be recalled, was a sealed instrument, conveying every right of the se...
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1. Under section 4 of the act of the General Assembly approved.August 20, 1918 (Ga. L. 1918, p. 352), any justice of the peace or ex-officio justice of the peace issuing a peace warrant to be executed within the limits of the city of Atlanta is in contempt of the municipal court of Atlanta and may be punished therefor by that court. (а) A peace warrant is included by the words “'warrant . . or wri...
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1. Where a promissory note payable one day after date is brought by a third person after it is due, the buyer does not occupy the position of an innocent purchaser, but takes the note subject to all the equities between the original parties. Civil Code, (1910), § 4287; Beall v. Leverett, 32 Ga. 105 (79 Am. Dec. 298). 2. Under the above ruling and all the particular facts of the instant case, the o...
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1. This court has no original jurisdiction, but is a court for the correction of errors of law only. It cannot pass upon a question as to the jurisdiction of a trial court where such question is raised for tlie first time in this court, even though it appear from the face of the record that the trial court had no jurisdiction of the subject-matter before it. Fox v. State, 150 Ga. 673 (104 S. E. 63...
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1. Cases contemplated by the statute in which extraordinary motions for new trials will lie should disclose transactions which do not ordinarily occur in human affairs. Cox v. Hillyer, 65 Ga. 57(2). 2. “ Ordinarily, cumulative and impeaching evidence is not ground for a new trial; but when such a motion is made on the ground of newly discovered evidence, it must appear by affidavit of the movant a...
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1. All tlie grounds of the amendment to the motion for a new trial are based upon alleged errors in the charge of the court, and are without substantial merit. The charge was a fair and substantially correct presentation of the controlling issues of the case, and, in the absence of any request for more particular instructions, was sufficiently full. None of the excerpts complained of, when conside...
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1. The only question in this case is whether the defendant contracted with the plaintiff to do certain work on the residence of the latter. While the defendant and one Bobbitt testified that the contract was between the plaintiff and Bobbitt, and not between the plaintiff and the defendant, there was abundant circumstantial evidence which authorized the jury to disbelieve the testimony of Bobbitt ...
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1. Even if the suggestion of counsel for the plaintiff in error to the court could be treated as a formal motion to suspend the trial and allow the jury to visit and inspect the place where the injury sued for occurred, the judge did not abuse his discretion in denying it. Applications of this character are always addressed to the sound discretion of the court. Macon Railway & Light Co. v. Vining,...
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1. Where, upon the trial of one charged with burglary, the evidence makes out a case of burglary including larceny from the house, the accused may be legally convicted of the last named offense. Barlov. State, 77 Ga. 448; Green v. State, 119 Ga. 120 (45 S. E. 990); Lockhart v. State, 3 Ga. App. 480 (60 S. E. 215). 2. The alleged newly discovered evidence is largely cumulative and impeaching in its...
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1. There was some evidence which authorized the instructions to the jury excepted to, and they were not erroneous for any reason assigned. 2. The general grounds of the motion for a new trial, not having been argued in the belief of counsel for plaintiff in error, are treated as abandoned. Judgment affirmed. Luke and Bloodioorth, JJ., concur. ...
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1. No exceptions pendente lite were filed to tlie judgment overruling the demurrer to the accusation; and it not appearing from the bill of exceptions or the record that the bill of exceptions to the overruling of the motion for a new trial was tendered the judge within 2b days of the date of the judgment on the demurrer, the assignment of error in the bill of exceptions upon that judgment cannot ...
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1. The evidence amply authorized' the defendant’s conviction, and there is no merit in either ground of the amendment to the motion for a new trial. Judgment affirmed. Luke and Bloodworth, JJ., concur. J. II. Fellcer, for plaintiff in error, E. M. Roberts, solicitor, contra....
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1. Where one convicted in a police court of violating a city ordinance presents a petition for certiorari, and the bond attached to the petition does not provide for his personal appearance to abide the final judgment, order, or sentence upon him in the case, and no affidavit in forma pauperis has been made, sanction of the petition should be denied. Ruffin v. Millen, 18 Ga. App. 784 (90 S. E. 654...
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(After stating the foregoing facts.) The brief for the plaintiff in error limits this court to the consideration of a single issue, to wit, is the service of the summons on the defendant, as shown by the entry of service and by the evidence on the traverse, sufficient ? The provisions of the statute in reference to service of summons issued by authority of the municipal court of Atlanta are found ...
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1. There being evidence that the automobile and other articles alleged to have been stolen were found in the defendant’s recent possession, and the jury having failed to accept his contention that the automobile so found was not the automobile stolen, and having failed to believe his explanation as to his recent possession of the lap-robe and the curtains, which wore identified as being the proper...
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1. In the absence of an appropriate written request to instruct the jury with reference to the impeachment of witnesses, the failure of the court so to do affords no cause for a new trial. See oases cited in Park’s Penal Code, in note under § 1054, on impeachment of witnesses. 2. The alleged newly discovered evidence is in part cumulative to that offered at the trial to establish an alibi. The res...
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There is no reversible error in either of the excerpts from the charge of the court of which complaint is made; the trial judge *51approved the finding of the jury on conflicting evidence, and this court cannot interfere where no error of law has been committed. Decided December 16, 1920. Action for damages; from Dooly superior court — Judge Gower. May 4, 1920. The action was for injury to a mule ...
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(After stating the foregoing facts). The evidence showed the amount which had been expended for doctor’s bill, and that the plaintiff had lost about six months’ time, but it did not show any specific percentage in the diminution of his ability to labor or his capacity to earn money. Complaint is made of the following charge to the jury: “He says he suffered a permanent injury and that his capacity...
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1. The evidence in this case shows that the defendant and Elgie Appleby, who were playing, with others, in a game of cards, engaged in a quarrel, drew pistols, and cursed at each other, and, while they were thus engaged, the defendant shot and killed Appleby. It was not error for the court to charge the law of voluntary manslaughter. Gann v. State, 30 Ga. 67; Williams v. State, 125 Ga. 302 (54 S. ...
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1. Upon the trial of this case, and after argument of counsel, the defendant moved the court to “ exclude from the consideration of the jury so much of the solicitor-general’s argument as attacks and criticizes the defendant’s character and his failure to put his character in issue, for the reason such argument is improper, illegal, and prejudicial, inasmuch as the defendant’s character is not in ...
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The accused was convicted of simple larceny, and moved for a new trial upon the usual general grounds only. There was abundant evidence tending to show the larceny of $500 in money, as alleged; and that another person, at the instance and direction of the accused, actually stole the money from a trunk in which the owner was keeping it, and then and there gave it to the accused, who was present, ai...
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1. This court has jurisdiction to review the decisions of any city court in the State established at a county-site which was a city when the act establishing the court was enacted, if the act or an amendment thereto provides for a jury of twelve upon the demand of either party in a cause, civil or criminal, and if the court has both civil and criminal jurisdiction, either over the limits of the ci...
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This was a case of abandonment of a child. By agreement it was submitted to the judge, who passed upon the ease without the intervention of a jury. In such a case it is not necessary that the same strictness as to the admission of evidence be adhered to as when the case is submitted to a jury, as the judge, upon a final determination of the case, is supposed to be able to “ sift the wheat from the...
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The defendant and John Gilbert were tried together for the offense of possessing intoxicating liquors, and both were convicted. The defendant’s motion for a new trial contained only the usual general grounds, and two grounds which were merely amplifications of the general grounds. The judge charged the jury, in part, as follows: “ If you believe, from the evidence, that Prank Norman was in possess...
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The evidence in this case was sufficient to authorize the conviction of the defendant; and since the verdict of guilty has the approval of the trial judge, and there being no assignments of error insisted upon except the general grounds of the motion for a new trial, it was not error to overrule the motion for a new trial. Judgment affirmed. Broyles, G. J., and Bloodworth, J., oonour. ...
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1. The act of 1915 making it a misdemeanor to operate a motor-vehicle upon a public highway while under the influence of intoxicating liquors (Ga. L. Ex. Sess. 1915) may be violated by one who partakes of such liquors, as well as by one who partakes of them until a state of drunkenness is reached. The court did not err in instructing the jury as complained of. 2. In the trial of such a case, evide...
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The accused was convicted of gaming, and moved for a new trial upon the usual general grounds only. There was evidence tending to show that a number of persons were seen playing and betting for money at a game played with cards in one corner of a pool-room; that the accused was there temporarily in charge of the room; that the game was reported to certain arresting officers, who immediately raided...
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The demurrer in this case alleged that the indictment contained but one count, that in that count the accused was charged with committing a felony and a misdemeanor, and that “ a felony and a misdemeanor cannot be charged in the same count in an indictment.” “Demurrer, being a critic, should itself be free from imperfection. ” This demurrer did not point out what specific felony and what specific ...
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1. “ It must affirmatively appear from the bill of exceptions or the entries thereon, or the record, that the bill of exceptions was presented within the time prescribed by law.” Evans v. State, 112 Ga. 763 (38 S. E. 78); Jones v. State, 146 Ga. 8(1) (90 S. E. 280). 2. “ Where it does not affirmatively appear from the record that the bill of exceptions was tendered upon a date prior to the date of...
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W. H. Amerson was indicted for the murder of Juhan Abogglin and was convicted of voluntary manslaughter. He moved for a new trial upon the usual general grounds, and upon the further ground that the court erred in giving in charge to the jury the law of voluntary manslaughter. That motion being overruled, he brought the case here for review. The sole contention of counsel for the plaintiff in erro...
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1. A conviction may be lawfully bad upon a free and voluntary confession, tliougli it be not otherwise corroborated than by proof of the corpus delicti. Chancey v. State, 141 Ga. 54 (5) (80 S. E. 287), and cases cited. 2 When the charge of the court is read in its entirety, there is no error in the excerpt from the instructions upon the burden of proof or upon . the reasonable doubt vouchsafed the...
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1. Where the order upon a motion for a new trial provided that the hearing upon the motion should be had on a certain day in vacation, and that if not then heard the motion should be heard at the next regular term of court, it was not error for the court to dismiss the motion at the next regular term because “ no appearance was had for movant, and no approved brief of evidence or amended motion wa...
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1. All exceptions relating to the evidence in this case present the single contention that the evidence is not sufficient to sustain the verdict; and, it appearing from the evidence that while Ford and his wife were working as tenants on a place rented by the defendant from one Sutton, Ford’s wife found and turned over to him a- pocket-book containing $85, which Sutton had lost and which they knew...
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There is no merit in any of the grounds of the amendment to the motion for a new trial; there is ample evidence to support the verdict, the trial judge has approved it, and this court has no authority to interfere. Judgment affirmed. Broyles, O. J., and Luke, J., concur. ...
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1. The only ground of the amefidment to *79the motion for a new trial alleges error in the refusal of the judge to declare a mistrial “because of certain statements and improper remarks made to the jury ” by one of the attorneys for the prosecution. For two reasons this court is not called upon to consider this ground of the motion. (а) The statement of the trial judge in connection with this grou...
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1. The ground of the motion for a new trial which relates to alleged newly discovered evidence cannot be considered, because it is fatally defective in that the witness upon whose evidence the ground is bared is not supported by the other affidavits required by section 6086 of the Civil Code of 1910. Moreover, the only effect of the alleged newly discovered evidence would be to impeach the only wi...
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1. “ This court, hy the constitutional amendment creating it, is limited in jurisdiction to the correction oí errors in law alone, and therefore has no power to grant a new trial on the ground that the verdict is strongly contrary to the weight of evidence, if there is any evidence at all to support it.” Collins v. Broom, 21 Ga. App. 420 (1) (94 S. E. 645), and cases cited. Judgment affirmed. B...
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The motion for a new trial in this case contained only the usual general grounds. “.While the evidence is rather weak, this court cannot say, as a matter of law, that the verdict is without evidence to support it. 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 ...
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A theft of chickens was charged in the indictment; the prosecutrix swore that the chickens found in the possession of the defendants on the night of the theft were her chickens, and there was evidence that the defendants admitted stealing the chickens. It was therefore . not error to overrule the motion for a new trial,- the only ground relied upon being that the evidence did not authorize the ver...
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Only the second headnote needs elaboration. A rule nisi was issued by the judge of the city court of Black-shear against B. H. Morgan, calling upon him to show cause why he should not be adjudged in contempt of court because he “ did accost and abuse” C. A. Thomas, a witness, about the evidence *84of Thomas in a case then on trial in that court. At the hearing thereon the prosecuting witness testi...
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Only beadnotes 2 and 5 need elaboration. The principles underlying each are the same, and they will be covered by the same general discussion. This case arose by reason of the levy of an execution, the giving of a forthcoming bond, and a breach of the bond, the action being against the principal and the surety on the bond. Upon the trial the jury found in favor of the defendants, and the plaintiff...
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1. It does not appear “that counsel for the plaintiff did not have a sufficient opportunity to prepare any necessary amendment after knowledge that the demurrer had been filed and before it was brought to the attention of the court and insisted upon in argument; and hence this court cannot say that the trial judge abused the discretion vested in him or infringed upon the rights of the plaintiff in...
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1. A contract in writing cannot be changed, into a conditional obligation by parol, in the absence of fraud, accident, or mistake. See Haley v. Evans, 60 Ga. 157 (2). In this case the defendant undertook to show a contemporaneous parol agreement rendering the written contract conditional. He pleaded also fraud in the procurement of the contract, but this plea was not supported by the evidence. 2. ...
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The Atlantic Refining Company' of Brunswick, Georgia, gave to the H. C. Weller Company of Jacksonville, Florida, an order for a one-yard No. 61 Ransome mixer (concrete mixer). The refining company, on the request of the Weller Company, sent A. J. Wright, one of its employees, to Jacksonville to inspect the mixer, which he did, and after the inspection he wrote across the order the following words:...
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1. The court did not err in admitting in evidence, over the objections of the claimant, the forthcoming bond given by the latter, or the entry of levy upon the distress warrant. This documentary evidence, while defective in some particulars, was sufficient to show the fact of levy, and was admissible for that purpose. Moreover, the claimant, having executed the forthcoming bond and thereby obtaine...
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1. The petition as finally amended was not subject to any ground of the demurrer interposed, and the court did not err in so ruling. 2. In view of the facts stated in the certificate of the judge, it does not appear that he abused his discretion in overruling -the defendant’s motion for a continuance. 3. In the light of the facts of the ease and the charge of the court in its entirety, no reversib...
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Under all the facts of tlie case, the evidence was sufficient to exclude every reasonable hypothesis save that of the defendants’ guilt, and it was not error for any reason assigned to overrule the motion for a new trial. Judgment affirmed. Broyles, O. J., and Bloodworth, J., concur. ...
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1. Where a ground of an amendment to a motion for a new trial is not approved as true by the judge, but is approved with certain material qualifications, it will not be considered by this court. “ If the judge approve the ground at the amendment, without more, this is a sufficient approval; but an express approval with certain added qualifications is not an unqualified approval of the ground as tr...
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1. The charge upon the subject of confessions was authorized by the evidence and was not error for any reason assigned. 2. The charge upon the subject of positive and negative testimony was authorized by the evidence and was not erroneous for any reason assigned. 3. None of the other excerpts from the charge, complained of, when considered in the light of the entire charge and the facts of the cas...
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Nick Antonopoulas was sentenced in the city court of Richmond county, on his plea of guilty, to pay a fine of $800 and to work on the chain-gang of that county for twelve months. The chain-gang sentence was so molded that he was permitted to serve the same outside the confines of the chain-gang, on the condition that he should not again violate the prohibition laws of Georgia. Subsequently, upon a...
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This court having held that the bill of exceptions in' this case duly assigned error upon a final judgment, and that the trial judge had erred in sustaining the defendant’s demurrer to the petition upon the ground of misjoinder of actions' and parties (24 Ga. App. 439, 101 S. E. 401), and the Supreme Court on certiorari having reversed the judgment of this court, holding only that the bill of exce...
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1. A non-resident of the State having been made a party defendant to the bill of exceptions in this case, and served as provided in the Civil Code (1910), § 6161, the motion to dismiss the writ of error is overruled. 2. This case is otherwise controlled by the answer of the Supreme Court to a certified question. Pinion v. Henry, 150 Ga. 595 (104 S. E. 427). Judgment reversed. Jenkins, P. J., an...
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According to the answer of the .Supreme Court to a certified question in this case (150 Ga. 789, 105 S. E. 304), it was error to dismiss the affidavit of illegality. Judgment reversed. Jenkins, P. J., and Sill, J., conew. Affidavit of illegality; from Effingham superior court — Judge Lovett. November 20, 1919. Sectbroolc & Kennedy, for plaintiffs in error. D. II. Glarh, contra....
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This court having held that the trial judge erred in dismissing the plaintiff’s motion for a new trial upon the ground that the movant had not presented for approval a brief of the evidence within the time allowed by law (Ross v. Garraux, 24 Ga. App. 601, 101 S. E. 700), and the Supreme Court on certiorari having reversed this judgment (Garraux v. Ross, 150 Ga. 645, 104 S. E. 907), the judgment of...
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In accordance with the answer of the Supreme Court to a certified question in this case (English v. Rosenkrantz, 150 Ga. 745, 105 S. E. 292), the writ of error is dismissed. Writ of error dismissed. Jenkins, P. J., a/nd Sill, J., eoneur. ...
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1. The contract sued on — that-of a married woman — is not void as being a contract to pay a debt of her husband, even though made by her for the purpose of paying his debt and though this purpose was known to the plaintiff, it not appearing that the plaintiff was a creditor of the husband or had anything to do with any arrangement or scheme between the husband and the wife for the payment of the ...
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This being file first grant of a new 'trial, and it not appearing tliat tlie verdict rendered was demanded under the law and the ■ evidence, nor that the trial judge abused his discretion, the judgment granting the new trial will not be 'disturbed. Judgment affirmed. Jenkins, P. J., and Mill, J., concur. F. M. Scarlett, Jr., for plaintiff in error. Frank H. Harris, contra....
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Upon the trial of a claim case, where there was evidence to the effect that the personal property levied on had been bought by the claimant, but that the written contract of sale, contained -in- a pur- ■ chase-money note to the vendor, was signed both by the claimant and , one of the- defendants in fi. fa., it whs error to rule out and exclude from the jury, on motion of the plaintiff in fi. fa., ...
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1. The alleged newly discovered evidence being such as could have been ascertained by the movant by the exercise of due diligence, and being merely cumulative and impeaching, and', if adduced upon a new trial, not likely to produce a different result, and there being evidence to support the verdict, the trial judge did not err in overruling the defendant’s motion for a new trial. 2. A certain affi...
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1. Where one of the parties to a contract is bound to perform by delivering by a certain date a stipulated quantity of a commodijby.wMch is afterwards delivered in broken quantities, at the convenience of the contracting parties, a refusal by the other party to the contract, *121before the expiration of the contract, to accept any more deliveries at present, without indicating any intention to ref...
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1. Where a case has been dismissed upon the defendant’s motion, on a ground not going to the merits of the case, the dismissal will not, in a subsequent suit between the parties, support a plea of res judicata filed by the defendant. This rule is applicable in a “bailtrover ” proceeding where the former suit was dismissed on motion of the defendant upon the ground that the affidavit attached to th...
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1. In a suit to recover tlie purchase-price of a second-hand lighting plant sold by the plaintiff to the defendant, where the defendant pleaded a total failure of consideration, in that the property sold was not reasonably suited for the purpose intended, and where the evidence showed that “ the plant failed to work properly and would stop altogether, and did not light the house as it should;” tha...
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1. Value being a mere matter of opinion,’a false statement as to the value of stock in a corporation, ir.r le.by a seller to induce a sale of the stock, is not such a misrepresentation of an existing fact as will amount to a fraud and void the sale. . Coca-Cola Bottling Co. v. Anderson, 13 Ga. App. 772 (80 S. E. 32). In a suit on a promissory note given for the purchase-price of certain stock in a...
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1. A contract executed by tlie payment of a sum of money — as $1 —- by one party, as a consideration- for a promise or undertak-ing by the other -party is not void for want of consideration. Southern Bell Tel. &c. Co. v. Harris, 117 Ga. 1001 (2) (44 S. E. 885). 2. The contract sued upon, as set out in the petition, is as follows: “ For the consideration of one dollar in hand paid, I hereby give W....
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1. Where the ostensible owner of an automobile stored, it in a garage, to be called for later, and one claiming to be the true owner of the car instituted bail-trover proceedings against the bailee, giving bond therefor, and after thus obtaining possession of the car dismissed his proceeding in trover, and, with the consent of the defendant, the bailee procured an order of court annulling the bond...
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1. Where one purporting to be the maker of a promissory note • negotiates it, for a money consideration, with the payee named therein, the note will be considered as the act and deed of the alleged maker, although he did not in fact sign the note. Under such evidence a plea of non est factum is not sustained. 2. There being no conflict in the evidence upon the controlling question in this ease, th...
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1. “Where the statute of frauds was not pleaded, and'there was no demurrer, motion for nonsuit, or objection to testimony, so as to invoice a ruling in the court below on that subject, this court will not grant .a new trial on the ground that the'verdict is contrary to law because it appears that the contract sought to be enforced should have been in writing.” Johnson v. Latimer, 71 Ga. 470(3). 2 ...
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On January 1, 1918, Lee instituted proceedings to dispossess Lacy summarily as his tenant holding over beyond the expiration of the tenant’s term, which, it was alleged, expired on December 31, 1917, the plaintiff alleging that he himself held the premises as a tenant from Mrs. Mary A. Beasley, the owner, for a period of 5 years from December 10, 1915. The defendant filed a counter-affidavit, alle...
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1. Tlie defense of non est factum can be successfully pleaded to a suit on a negotiable promise to pay, even as against a bona fide holder for value who took it prior to maturity and without notice of such defense. Civil Code (1910), § 4286. Thus, a valid and completed contract can only be enforced against the maker in the form in which it was expressed, and if such a completed instrument be inten...
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1. In a suit upon a statutory bond required under the Civil Code (1910), § 6040, given for the delivery of personal property levied on at the time and place of sale in the event that an affidavit of illegality which has been filed to the execution shall be dismissed or withdrawn, it is necessary for the plaintiff to prove what disposition was made of the affidavit of illegality, and the amount of ...
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Only the third division of the syllabus requires elaboration, since counsel for plaintiff in error, in his admirable brief, properly concedes that the judge who determined. the case, sitting as both court and jury, was authorized by the evidence to find that the misstatements of fact in the application were not of material character, and that in view of the decisions of the Supreme Court and of th...
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1. Where a plaintiff in certiorari paid the cost in the court below and made the affidavit provided for by the Civil Code (1910), § 5187, except that in the affidavit he did not say that he was unable to pay the cost, the law in these respects was complied with, and the court did not err in refusing to dismiss the certiorari because the affiant did not swear that he was unable to pay the cost. Sim...
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1. This case is controlled by the decision in LeBron v. Stewart, 26 Ga. App., supra (105 S. E. 650). Judgment affirmed. Jenlcins, P. J., and Hill, J., concur. Certiorari; from Fulton superior court — Judge George L. Bell. April 2, 1920. Neufville & Neufville, for plaintiff in error. Burr ess & Dillard, contra....
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This case being the trover case tried with the action for breach of contract referred to in Cheek v. Tripp, 25 Ga. App. 800 (105 S. E. 247), it is controlled by the decision there rendered, for the reasons stated in the first and second paragraphs of the opinion in that case. Judgment reversed. Stephens and Hill, JJ., concur. ...
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A bond executed by the claimant in a claim case, conditioned to pay to the plaintiff in fi. fa. all damages which the latter “may sustain . . in case it should appear that said claim was made for the purpose of delay only,” substantially complies with the Civil Code (1910), § 5158, which provides that the bond required of the claimant shall be “conditioned to pay the plaintiff all damages which th...
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A petition by a solicitor-general to validate bonds voted by a school district must specifically set forth a strict compliance with the law relative to the service of the notice provided for by the Political Code (1910), § 445, the name of the district seeking to issue the bonds, the amount of the bonds to be issued, for what purpose they are to be issued, what interest they are to bear, how much ...
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The plaintiff was a railway employee who at the time of his injury was engaged in unloading piles from flat cars. *138The piles were held in place by wooden upright standards on each side of the car. These standards, opposite to one another, were bound together by wires stretched across the car. The unloading was effected by cutting the standards on one side of the car partly in two, and then cutt...
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1. A plea of total failure of consideration includes a partial failure, and under such a plea a verdict allowing a partial abatement of the purchase price is permissible. Morgan v. Printup Bros. & Pollard, 72 Ga. 66. 2. Where, in defense to a suit against the maker of a purchase-money note which does not purport to contain the terms of sale, a plea of total failure of consideration is entered, in ...
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In a suit in trover in which the plaintiff sought to recover the money value of personalty described in the petition as “ One Chevrolet five-passenger touring car, 1917 model, motor number 71416,” which had been sold by the plaintiff to a third person under a retention of title *140contract, evidence that the defendant had'in his possession one Chevrolet five-passenger touring car, 1917 model, whi...
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1. Two automobiles collided at the intersection of public highways, the collision resulting in the partial demolition of both machines. The owner of one brought suit against the owner of the other for damages. The defendant replied by claiming damages to his car, caused by the driver of the plaintiff’s car. In other words, each party to the suit contended that the other was negligent, and sought t...
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1. (After stating the foregoing facts.) The principal point to be decided by this court is whether the common carrier, under the allegations of the petitions, had the right to recover the freight, and, if so, whether this right was to recover freight for the transportation of whisky, or freight for the transportation of roofing pitch. The trial court overruled the demurrers generally, and this cou...
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1. The construction of an unambiguous contract is a matter for tlie court, especially when there is no contention that there is any ambiguity in the terms of the contract. Park’s Ann. Code, § 4265; Ludden & Bates Sou. Music Co. v. Dairy & Farm Supply Co., 17 App. 581 (1) (87 S. E. 823). It was therefore not error for the court to charge, “ As I stated, the contract is attached to the petition and ...
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1. Where a motion for a new trial was filed and an order granted thereon allowing the movant until a fixed day in vacation to amend the motion and to prepare, perfect, and file a brief of the evidence, and on the day fixed no brief of the evidence was presented to the court, the motion was a mere nullity and the result is the same as if none had ever been made. Baker v. Johnson, 99 Ga. 374 (27 S. ...
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1. The plaintiff’s case was clearly and distinctly set forth in the cause of action attached to the summons, which fully informed the defendant of the plaintiff’s demands. While there was some slight ambiguity in the pleadings, the cause of action attached to the summons showed that it was an action ex contractu and not ex delicto. 2. While the question of the value of an article is peculiarly for...
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1. A petition to recover damages for false imprisonment, wMcli alleges that the plaintiff was quietly and peaceably in her own home when arrested by the defendant and a police officer, and that the arrest and imprisonment were made without any warrant, makes out a prima facie case of false imprisonment. The exceptions in the statute which permit the arrest of a person without a warrant are matters...
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The action was for commissions on certain work alleged to have been performed by the plaintiff under a contract with the defendant. After hearing the evidence and upon a construction of the contract, the court directed a verdict in favor of the plaintiff for a part of his claim, and a verdict in favor of the defendant for the remainder of the claim. Under the terms of the contract and the evidence...
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After a decision by this court on March 2, 1920 (24 Ga. App. 790, 102 S. E. 464), this case was carried by certiorari to the Supreme Court, which held: “ The facts stated in the petition, taken as true (as they must be when tested by general demurrer), fail to show negligence by the defendant; and the petition was properly dismissed.” 150 Ga. 747 (105 S. E. 358). Complying with the ruling just sta...
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1. It was not error to overrule the demurrer to the indictment. The indictment charged the crime in the language of the statute and so plainly that the jury must have understood the nature of the offense charged. It was therefore not subject to demurrer. Penal Code (1910), § 954. The description of the automobile was sufficient. Adams v. State, 21 Ga. App. 152 (94 S. E. 82), and citations. This of...
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1. “ A direct assignment of error upon a ruling made during the progress of a trial comes too late if for the first time presented in a bill- of exceptions sued out more than thirty days after the adjournment of the term at which such ruling was made.” Heery v. Burkhalter, 113 Ga. 1043(1) (39 S. E. 406). Nor can such a ruling be properly made a ground of a motion for a new trial. Methodist Episcop...
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Bor no reason argued in the brief of counsel for the plaintiff in error was it error for the judge of the superior court to overrule the certiorari. Judgment affirmed. Broyles, G. J., cmd Bloodworth, J., conew. ...
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1. Where a petition against a railroad company in an action for the killing of live stock alleges substantially that on or about a certain date, between the eighty-fourth and eighty-fifth mile post of the defendant’s railroad, in a designated county, defendant, by the running of its trains, ears, and locomotives, killed a described animal belonging to the plaintiff, and that the killing was the re...
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1. In all cases of bailment, after proof of loss, the burden of proof is on the bailee to show proper diligence. Civil Code (1910), § 3469. Therefore, where property is delivered to a bailee who holds it for hire, and in a suit by the bailor it is pleaded that because of the negligence of the bailee the property so delivered has been destroyed by fire, upon proof of the allegations laid in the pet...
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1. The bill of exceptions recites that the “judge passed an order and judgment overruling said certiorari, to which order and judgment and ruling the said Claud Chandler and Mrs. Amanda Edwards then and there excepted and here and now except, and assigns said order and judgment and ruling, as error, as being contrary to law and contrary to the evidence, and say that said judge, under the law appli...
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(After stating the foregoing facts.) In the contract sued upon the language, “ I herewith confirm sale to you of 100 bales cotton,” clearly showed an offer to sell upon the-terms and at the time stipulated in the contract. Luke v. Livingston, 9 Ga. App. 116 (70 S. E. 596). The contract, being also signed by the buyer, showed on its face that the offer to sell had been accepted by him. It. thus bec...
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1. When considered in the light of the pleadings, the facts of the case, the entire charge, and the qualifying note of the judge to certain grounds of the amendment to the motion for new trial, no error *172requiring tlie grant of a new trial is shown in any of the grounds which complain of errors made by the judge in charging the jury. Decided January 25, 1921. Action for damages; from city court...
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The evidence in tliis ease authorized the verdict, which has the approval of the trial judge, and, in view of the note of the trial judge approving the motion for a new trial, there is no error of law that requires a reversal of the judgment overruling the motion for a new trial. Judgment affirmed. Broyles, O. J., and Bloodworth, J., concur. ...
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The verdict in this case was rendered upon conflicting evidence, and was not without evidence to support it. A reading of the charge of‘the trial court in its entirety relieves the charge from the criticisms urged by the plaintiff in error as .to portions of it. There was no error requiring a reversal of the judgment overruling the certiorari. Judgment affirmed. Broyles, G. J., and Bloodworfh, ...
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The presumption of negligence,which arose against the defendant railroad company when it was shown that the dog for whose death the *173plaintiff was suing had been killed by the running of one of the defendant’s trains (Seaboard Air-Line Ry. v. McDonald, 19 Ga. App. 627 (91 S. E. 1053), was completely rebutted by the uneontradieted testimony of the company’s employees who were operating the train...
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Grounds 1, 2, 3, 4, and 8 of the amendment to the motion for a new trial are but amplifications of the general grounds. 1. Ground 5 complains that certain evidence was erroneously allowed to go to the jury. This testimony, which consisted of several sentences, was objected to en bloc, and at least a portion of it was admissible. “ Where evidence is offered and objected to, and a portion thereof is...
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The evidence in this ease did not authorize the verdict, and for this reason it was error to overrule the motion for a new trial. Judgment reversed. Broyles, G. J., and Bloodworth, J., concur. Padgett & Watson, for plaintiff in error. II. L. Causey, solicitor, I. J. Bussell, contra....
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1. A failure to comply witli Rule 15 of this court, relating to filing and service of briefs, is not a ground for the dismissal of a writ of error. Rogers v. Mayers, 3 Ga. App. 69 (59 S. E. 309). 2. The motion to dismiss the bill of exceptions on the ground that the assignment of error therein is legally insufficient is without merit. The ruling of the judge of the superior court in dismissing the...
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1. There is no statutory authority in this State authorizing a x’eceiver, in his representative capacity and merely by virtue of his general authority as receiver, to institute actions. And, as a general rule in this State, a receiver cannot bring a suit without express authority from the court. Screven v. Clark, 48 Ga. 42; Vestel v. Tasker, 123 Ga. 213 (51 S. E. 300); 34 Cyc. 377, and citations. ...
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1. Under repeated rulings of this court and of the' Supreme Court, the judgment upon a demurrer to a defendant’s plea is not a final judgment, .and a bill of exceptions complaining only of such a judgment is prematurely brought and will be dismissed. In the instant case the only assignment of error in the bill of exceptions is upon the overruling of a general demurrer to a portion (a counterclaim)...
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1. The evidence objected to, though somewhat vague and inconclusive, was admissible for what it was worth. 2. The evidence in the case, though weak and not altogether satisfactory, authorized the verdict; and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere. Judgment affirmed. Luke and Bloodworth, JJ., concur. W. M. Pullen was convi...
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The evidence in this case did not authorize the verdict, and for • this reason it was error to overrule the defendant’s motion for a new trial. Judgment reversed. Broyles, O. J., and Bloodworth, J. concur. G. J. Lester, for plaintiff in error. J. F. Bedding, solicitor, contra....
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1. Under the facts of this case the court did not err in charging on circumstantial evidence. 2. The judge did not express or intimate his opinion as to “what has or has not been proved, or as to the guilt of the accused, ” by instructing the jury that they “would be authorized to convict him whether such conviction depended upon direct or circumstantial evidence in the case, provided you are sati...
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1. Under repeated rulings of this, court and of the Supreme Court, a ground of a motion for a new trial will not he considered unless it is complete and understandable within itself. [a) A ground based upon the exclusion of material evidence is too incomplete to he considered where it fails to show on what ground the evidence was excluded or wherein the court erred in excluding it, or where the ma...
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1. There being in this State no practical distinction between principals in the first degree and principals in the second degree (August v. State, 11 Ga. App. 798, 76 S. E. 164; Maughon v. State, 9 Ga. App. 559, 71 S. E. 922), the court did not err in failing to instruct the jury upon the law in reference to the conviction of a principal in the second degree. 2. The alleged error in the charge of ...
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1. Under repeated rulings of this court and of the Supreme Court a ground of a motion for a new trial will not be considered unless it is complete and understandable within itself. (a) A ground based upon the exclusion of material evidence is too incomplete to be considered unless it not only shows on what ground the evidence was excluded but wherein the court erred in excluding it. Furthermore, w...
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The defendant was sued on certain promissory notes which she and her husband jointly signed. There were no *196indications on tbe notes that she signed them as surety only, but she pleaded that she signed them as surety for her husband and that the contracts, under the law, were unenforceable against her. The evidence upon the trial amply authorized a finding that the money obtained upon' the note...
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1. Where a real-estate broker, during the agency, procures a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner, the broker’s commissions are earned. Civil Code (1910), § 3587. (a) In such a case the broker can recover commissions notwithstanding the absence of a contract of sale binding alike on seller and purchaser. Humphries v. Smith, ...
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1. (After stating the foregoing facts.) The order of the judge setting the motion to be heard “ at Douglas, Ga., at ten o’clock on the 20th day of September, 1920, ” was construed by him as meaning 10 o’clock a. m. This was a reasonable construction, and the judge who passed the order having so construed it, this court will not interfere. See Pinnebad v. Pinnebad, 129 Ga. 267 (58 S. E. 879), and c...
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It appearing from the recitals in the bill of exceptions in this case that the bill of exceptions was tendered to the trial court more than 20 days after the date of the judgment complained of, the bill of exceptions must be dismissed. Writ of error dismissed. Luke and Bloodworth, JJ., eoneur. ...
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1. The first ground of the amendment to the motion for a new trial is as follows: “ The court erred in charging the jury as follows, to wit: * The defendant in this case has made a statement, and under section 1036 of the Criminal Code of the State of Georgia, it provides that the defendant has a right to make to the court and jury just such statement as she sees proper, to be under oath, and when...
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The motion for a new trial in this ease contains only the usual general grounds; the evidence was sufficient to authorize the jury to find that it excluded every reasonable hypothesis save that of the defendant’s guilt; and the court did not err in overruling the motion for a new trial. Judgment affirmed. Luloe and Bloodworth, JJ., concur. ...
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1. The alleged newly discovered evidence upon which, the amendment to the motion for a new trial was based was merely cumulative and impeaching in its character, and therefore did not require a new trial. 2. The other grounds of the motion for a new trial, not having been argued in the brief of counsel for the plaintiff in error, are treated as abandoned. Judgment affirmed. Luke a/nd Bloodworth...
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The amendment to the motion for a new trial is but an amplification of the general grounds. There is ample evidence to support the verdict, which has the approval of the trial judge; and the judgment is Affirmed. Broyles, O. J., and Luke, J., concur. ...
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The only assignment of error in the petition for certiorari which is argued in the brief of counsel for the plaintiff in error is that the judgment of the mayor and council of the City of Hawkinsville is contrary to law and the evidence, and that the evidence demanded a judgment in favor of the plaintiff in certiorari. The judge of the superior court sustained the certiorari and remanded the case ...
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1. “ The evidence in support of the defense of alibi was not of such clear and strong probative value as to require a charge upon the law of alibi, especially in the absence of a timely and appropriate written request therefor. ” Throckmorton v. State, 23 Ga. App. 112 (3) (97 S. E. 664); Gadlin v. State, 13 Ga. App. 660 (79 S. E. 751). 2! The evidence was sufficient to authorize a finding that it ...
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There was some evidence in this case to authorize the conviction of the defendant. The verdict has the approval of the trial judge, and this court cannot say that it was error not to grant a new trial upon the general grounds. The only other assignment of error is upon the ground that although the defendant’s only defense was an alibi, the jury were sent out to find their verdict without being cha...
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1. A trial judge lias a wide discretion when passing on a motion for a continuance of a case. He is the trior of the facts, and his discretion will not be controlled unless flagrantly abused; and the burden is upon the movant to affirmatively show such an abuse. In the instant case it was not affirmatively shown to the judge that the defendant was too ill to safely go to trial or to confer with an...
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1. This action was against the director-general of railroads, based upon alleged negligence of the Seaboard Air-Line Railway Company. It appears from the evidence that on June 4, 1918, the plaintiff purchased from the Southern Railway Company’s agent at Dunwoody, Ga., a ticket for transportation to Atlanta, Ga., and delivered to him her trunk, for which she received the company’s baggage-check; th...
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Considering the petition for certiorari, and the answer of the trial judge thereto, for no reason assigned was it error for the judge of the .superior court to overrule the certiorari. Judgment a'fjvi'med. Broyles¡ G. J., and BloodwortK, J., concur. On the trial of the case the foregoing facts appeared from the evidence introduced by the plaintiff; and at the conclusion of the plaintiff’s eviden...
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I. Where a man dies leaving, as a part of his estate, hank stools not fully paid for, and the stools is set aside to his widow and her minor children as a year’s support, “ after all the just debts are paid,” and, upon presentation to the bank of a certified copy of the year’s support proceedings, the bank issues to the widow alone a certificate which shows “ 60 % paid in and assessable, ” the rec...
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1. The measure of damages recoverable in a suit brought under the Federal employer’s liability act being only the amount the deceased, if he had ndt died, would have contributed to his legal beneficiaries (the plaintiff and her child in the instant case), it was reversible error for the court to instruct the jury as follows: “ If entitled to recover anything, it should be such an amount as would h...
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1. The evidence as to material facts in the case was conflicting, and the court erred in directing a verdict for the defendant. 2. The amendment to the motion for a new trial is without merit. Judgment reversed. Broyles, G. J., and Bloodworth, J., concur. Whitfield testified, that Epps did not represent him in any way whatever in the transaction in question, and that he did not authorize Epps to...
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1. In trover no set-off by the defendant is allowable, unless equitable relief is sought in the pleadings. Youngblood v. Armour Fertilizer Works, 23 Ga. App. 731 (99 S. E. 314). 2. Under the above ruling, the verdict in favor of the defendant was unauthorized, and the court erred in overruling the motion for a new trial. 3. The other alleged errors will not probably recur upon another trial. Judg...
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1. Where an owner of realty lists it for sale with two or more brokers, and 'A, one of the brokers, finds a customer, shows him the property, and interests him so therein that he (the customer) finally buys it, A is the real procuring cause of the sale, and is entitled to his commissions from the owner, although the deal is actually closed by B, another broker with whom the property is listed, whe...
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1. Tlie' code-section which declares that pleadings may bo amended, whether in matter of form or of substance, provided there is enough in the pleadings to amend by (Civil Code of 1910, § 5681), properly construed, means, that in order to admit of amendment, a valid cause of action must be set forth in the original declaration. Selma &c. Railroad Co. v. Laeey, 49 Ga. 107(2). 2. While an imperfect ...
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Myrtice Ransom, by her nezt friend, brought an action for damages against the Nunnally Company, alleging, in substance, that the defendant employed her to work in it's factory as a candy-packer; that on the second or third day after such employment she was put to work at a caramel-chopper, a machine composed of a wheel with a large knife attached, the wheel being turned by another employee by mean...
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(After stating the foregoing facts). It clearly appearing that the applicant did not pay the first year’s premiums on the policies at the time the application was made, the case is controlled by the following stipulation in the application, which was made a part of the proposed contract of insurance: “No liability shall exist until a policy as applied for shall have been issued and delivered to me...
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1. In the trial of a criminal case, where there was evidence tending to show that the alleged offense was committed in the home of one of the defendant’s witnesses, an unmarried woman, that the house was rented by the witness, was occupied regularly by her and her unmarried sister and occasionally by other women, and was frequented by men, that the occupants had no known and visible means of suppo...
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X. Grounds of a motion for a new trial, complaining of the admission of evidence, which state that the evidence was admitted “ over the timely objections of the defendant, ” but which fail to show what *234grounds of objection wore then and there urged and overruled by the trial court, present no question for decision by this court. Somers v. State, 116 Ga. 535 (3) (42 S. E. 779). Decided January ...
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Mrs. Rebie Rosenkrantz on April 16, 1918, filed a suit for damages against James W. English, Harry L. English, individually and as administrator of James W. English Jr., John K. Ottley, and others, for an alleged breach of contract. Her petition contains substantially the following allegations: In the year 1885 her father, W. B. Lowe Sr., with others, organized the Chattahoochee Brick Company, a c...
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(After stating the foregoing facts.) We think the court erred in overruling the-demurrer to the petition. The sole question is: Was the suit brought in the name of the proper party? 'In other words, where property is insured and a mortgage given by the insured and owner covering the same property, and to the policy is attached a “ New York standard mortgagee clause,” with loss, if any, payable to ...
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1. “ In an indictment under the Penal Code, § 329, which declares: ‘ If any person, informing or prosecuting under pretense of any penal law, shall compound with the offender, or direct the suit or information to be discontinued, unless it be by leave of the court where the same is pending, he shall be guilty of a misdemeanor, ’ it is not necessary to allege the essential elements of the pretended...
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1. A nolle prosequi as to some of the counts in the indictment works no acquittal, but leaves the prosecution just as though such counts had never been inserted in the indictment. Dealy v. United States, 152 U. S. 539 (1) (38 L. ed. 545) ; Martin v. State, 10 Ga. App. 795 (1) (74 S. E. 304), and authorities cited. See also 20 Standard Enc. Proced. 655(1). Under this ruling the court did not err in...
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The only negligence alleged in the petition was that the defendant failed to furnish to the plaintiff a rope of proper length for the purpose intended, it being alleged that the rope was too short and on that account would not go into the grooves as did the other ropes which he had placed therein. Upon the trial the evidence conclusively showed that the rope furnished by the'defendant to the plain...
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1. The right to open and conclude the argument to a jury is an important legal right, and if it" be improperly denied, its denial demands the grant of a new trial. In order for the defendant to obtain this legal right where a prima facie case for the plaintiff is admitted, it must be shown that the right was claimed before the testimony upon both sides had closed. See Jones v. Fourth National Bank...
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(After stating the foregoing facts.) In Youngblood v. Armour Fertilizer Works, 23 Ga. App. 731 (99 S. E. 314), it was held: (1) “ In an action to recover specific chattels, no counter-claim is possible, unless, perhaps, equitable relief may be awarded under some very exceptional circumstances. Pomeroy, Code Remedies, § 767; Harden v. Lang, 110 Ga. 392, 399 (36 S. E. 100).” (2) “In an action of tro...
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1. The defendant was charged with selling whisky. Several grounds of the amendment to -the motion for a new trial complain that the court allowed, over the objections of the defendant, two named witnesses to testify to the fact that “stills ” had been found near where the defendant lived. In admitting this testimony the court specifically instructed the jury as follows: “ I have admitted the evide...
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This case grew out of the following facts: The First National Bank of Dunn obtained a judgment against L. J. Cooper and J. S. Williams. Execution' was placed in the hands of the sheriff, who made demand upon Stanton, as cashier and vice-president of the First National Bank of Waycross, for information as to the number of shares of the capital stock of that bank owned by Cooper and the numbers of t...
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1. The evidence in this case shows conclusively that while Tobe Harrell was sitting in a chair in the sheriff’s office in the court-house, preparing to sign a criminal recognizance for a man against who Loyd had swrorn out a warrant, Loyd shot Harrell three times with a thirty-two-caliber pistol, hitting him once in the shoulder, once in the neck, and once near the heart. Loyd, in his statement on...
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The plaintiff in error, John Q. Phillips, was indicted for the murder of Walter A. Fendt, and upon his trial was convicted of voluntary manslaughter. There are several grounds on which he strenuously claims the right to a new trial, some on account of the evidence, some on account of the charge of the court, and all based on the contention that he should have been convicted of murder or nothing. O...
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This case is controlled by the decision of this court in Butts v. State, 26 Ga. App. 40 (105 S. E. 372), the defendant and Butts being jointly indicted for the offense of burglary. Judgment affirmed. Broyles, O. J., and Bloodworth, J., concur. ...
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This is a suit by J. 'H. Bailey, as administrator of the estate of C. S. Bailey, against the United Life and Accident * Insurance Company on a policy issued by the defendant in December, 1917, upon the life of the deceased, and payable to the latter’s estate. The defendant interposed both a general and special demurrer, and to the judgment sustaining the general demurrer and dismissing the suit th...
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The plaintiff, in recommencing his suit which had been previously nonsuited, failed to comply either with section 5625 of the Civil Code (1910) as to payment of costs, or with section 5026, his affidavit in forma pauperis failing to state that “he is advised that he has good cause for recommencing his suit.” It was not error for the court to dismiss the petition on demurrer. Judgment affirmed. ...
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Under the evidence for the State and the defendant’s statement, the jury were authorized to convict him of shooting at another. Their verdict has the approval of the trial judge. For no reason assigned did the court err in refusing to admit testimony as complained of, or in the conduct of the trial, or in charging the jury. See Beddingfield v. State, 13 Ga. App. 623 (79 S. E. 581). It was not erro...
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Tlie motion for a new 'trial contained only the usual general grounds; the evidence, with the legal deductions and inferences arising therefrom, authorized the verdict; and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere. Judgment affirmed. Lulce and Bloodworth, JJ., concur. ...
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This court having affirmed the judgment of the trial court in this case (24 Ga. App. 621, 102 S. E. 37), and the Supreme Court, on certiorari,'having reversed the judgment of this court (151 Ga. 9, 105 S. E. 596), the judgment of affirmance originally rendered by this court must be vacated and the judgment of the trial court reversed. Judgment reversed. JenMns, P. J., Stephens and Hill, JJ., co...
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1. Officers of the United States and of the several States, by virtue of the sovereignty of such governments and on grounds of public policy, are not subject to garnishment as to monies or other properties in their official possession or control, in the absence of express legislative authority clearly evincing the intention to subject them to such proceeding. Buchanan v. Alexander, 4 How. 20 (11 L...
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1. One holding an option to buy may in exercising the option direct that the title to the property be conveyed to another to whom he has resold. Where such resale by the person exercising the option has been made at a profit to him, and the purchaser has, upon conveyance to him by the owner of the latter’s interest in the property, paid to the owner the purchase-money due to the owner by the perso...
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1. Damage to business or loss of time suffered by the purchaser as a result of a total or partial failure of consideration or a breach of warranty cannot be recovered as damages for a breach of a contract of sale. In a suit by the seller against the purchaser to recover the balance due upon a promissory note given for the purchase-price of personalty, a plea of recoupment by the purchaser, in whic...
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1. Where one, with knowledge that another has performed certain service in his behalf, voluntarily accepts the benefit of the services, such acceptance amounts to a ratification of the act of the person performing the services, and the person benefited becomes liable to him for the value of the services rendered. See, in this connection, Stanley v. Glennville, 140 Ga. 306 (78 S. E. 1064). 2. Where...
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We think that the reasoning in Cook v. King, T. U. P. Charlton, 265, that a plaintiff is not required to give bond because his security to the defendant would be “nugatory, and, if nugatoiy, the law did not require it,” is unsound, and that in the instant case the learned judge of the superior court was correct in what seems to have been his view that such a bond was required. Among other reasons ...
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1. A verdict for the defendant is necessarily a finding against the plaintiff’s right to recover; and therefore any alleged error upon the subject of the amount of damages is harmless, unless it is in some way calculated to affect the verdict upon the question of liability. McBride v. Georgia Ry. &c. Co., 125 Ga. 515 (54 S. E. 674). Where in a personal injury suit a verdict had been rendered for t...
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1. Even if the ruling in regard to the admissibility of oral testimony as to the fact of levy was subject to the objection stated in the 4th ground of the motion for a new trial, it relates only to a collateral issue in the case, and could in no way have operated to prejudice the plaintiff’s case before the jury. 2. The 5th assignment of error, excepting to certain documentary evidence described a...
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1. In a former decision in this case (24 Ga. App. 616, 617, 101 S. E. 718) it was held, and became the “law of the case,” that “ after an oral motion for a new trial in the municipal court of Atlanta has been finally disposed of, either by having been overruled or dismissed, the jurisdiction which that court had over the case thereby ceases and the original judgment stands as final;” and that wher...
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(After stating the foregoing facts.) While the Georgia Casualty Company is not an actual party to the litigation, and the judgment herein rendered cannot, therefore, be taken as an adjudication of its rights or obligations, the practical question raised by the pleadings in this case is, which of the two insuring *291companies is responsible to the insured under the facts disclosed. In oral argumen...
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1. It is the duty of the master to furnish his servant a safe place to work, and a servant who in the exercise of due care is injured by the master’s negligence in failing to comply with this duty *298may recover of the master for the injury when the master knew of the unsafe condition of the place, and the servant did not know and had not equal means with the master of knowing of the condition an...
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1. “ The fact that property is placed in the hands of a broker to sell does not prevent the owner from selling, unless otherwise agreed.” Civil Code (1910), § 3587. In a suit by a broker against the owner to recover for a commission on an alleged sale by the broker for the owner, where there is an issue of fact as to whether or not the broker was employed by the owner to sell the property, or whet...
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(After stating the foregoing facts.) While the precise question here involved has never come before either of the appellate courts of this State, and there is great variance in the authorities from other jurisdictions, the unmistakable trend of our decisions, especially in the leading cases cited in the 2d division of the syllabus, is to hold remedial a statute such as is *301now before ns. Applyi...
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1. Where a written contract is incomplete and its meaning is uncertain and left to inference, extrinsic evidence is competent for the purpose, of showing the intent of the parties and establishing the full meaning of the contract. This being a suit growing out of an alleged breach by the defendant of a contract, where the plaintiff claimed that he was employed by the defendant for the purpose of o...
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1. Where there has not been fraud, accident, or mistake in the actual execution of a contract, but where in a legal sense the agreement has been knowingly entered upon, a party to the contract is never permitted, either under the guise of inquiring into the consideration or for the purpose of showing fraud in its procurement, to engraft upon it previous or contemporary promises, expressions of opi...
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1. The failure of the trial judge to charge the law as to contributory negligence on the part of the plaintiff, and as to diminution of damages on account of such negligence, was not error,, under the facts of this case, in the absence of a timely and proper written request *304to charge on the subject. Ala. &c. R. Co. v. Brown, 138 Ga. 328(6, 7) (75 S. E. 330) ; Savannah Electric Co. v. Crawford,...
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1. Where it is agreed in an oral contract for the sale of goods that the seller is not to perform until the purchaser has negotiated a contract for resale, the negotiation of such a contract for resale by the purchaser in compliance with the condition is not such a part performance of the original contract as will take it out of the statute of frauds, if there has been no acceptance and receipt of...
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1. Garnishment, under the Georgia statutes, while ancillary to the main suit to the extent that judgment cannot be rendered against the garnishee until after judgment against the main defendant has been obtained, is nevertheless in itself a distinct suit between the plaintiff and the garnishee, requiring separate and independent process and judgment. Dent v. Dent, 118 Ga. 853 (45 S. E. 680) ; Ahre...
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1. Where counsel for the defendant made a formal motion for continuance of the case, on the ground of the absence of the defendant, and stated in his place that his client’s absence was for “ reasons unknown to counsel,” that he “ needed the assistance of his client and oould not safely go to trial ” without him, and that the defendant was a witness to certain material facts, and where the motion ...
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Under the undisputed evidence, as outlined in the statement of facts below, the court did not err in directing a verdict for the plaintiff. Judgment affirmed. Stephens and Bill, JJ., concur. B. B. Qhasiain, L. B. Heath, for plaintiff in error. J. W. Quincey, 'contra....
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Where proof of service of a bill of exceptions is to the effect that a copy thereof was left at the residence of the attorney for the defendant in error during the attorney’s absence from the county, it must also affirmatively appear that the defendant in error (unless the defendant in error is the State) is a nonresident of the county where the bill of exceptions was sued out. Civil Code (1910), ...
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1. While the master is bound to exercise ordinary care in furnishing machinery reasonably safe for his servant to operate with ordinary care and diligence, yet the servant assumes the ordinary risks of his employment and is bound to exercise his own skill and diligence to protect himself, and where he is injured by reason of a defect in the machinery caused by the failure of the master to comply w...
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(After stating the foregoing facts.) 1. We think the court erred in excluding from evidence the letter of the defendant to the plaintiff, dated April 27, 1917. No objection was made to the introduction of this letter on the ground that it was a letter-press or carbon copy, and not the original. The objections urged were, “ that the letter was irrelevant and immaterial, and that it contained self-s...
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(After stating the foregoing facts). 1. The view we take of the second question makes it unnecessary to consider at length the questions of law arising on the demurrer and the .liability of the defendant under the evidence. It is sufficient to state that in the opinion of this court the allegations of the petition set out a cause of action, and these allegations were substantially proved by plaint...
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Where in a petition for certiorari the assignments of error were as to specified rulings of the trial court preceding the final judgment, and there was no assignment of error as to the final judgment, because of additional error in it or because of the antecedent error complained of, *320the judge of the superior court did not err in refusing to sanction the certiorari. McCranie v. Shipp, 10 Ga. A...
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1. In “ bail-trover ” a deputy sheriff in whose hands the process has been placed for execution is bound either to seize the property sued for or to arrest the defendant and imprison him until the property is produced or a bond is given for its forthcoming. Where he fails, without good excuse, to perform either one of these statutory requirements, he is liable for the eventual condemnation money r...
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Where counsel for the parties could not agree on a brief of the evidence, and the trial judge stated that “he would, not attempt to settle any differences or disputes between counsel, for the reason that he did not remember the evidence, the case having been tried fifteen months before,” there was no error in dismissing the motion for a new trial, the “movant not presenting for approval and filing...
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The writ of error challenges the correctness of three rulings of the judge of the superior court: (1) in dismissing a certiorari, on the ground that the name of the surety to the certiorari bond, as it appears in the record, seems to have been signed by an attorney in fact, and that the authority of the person so signing does not accompany the bond; (2) in refusing to permit the plaintiff: in cert...
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Hutcheson Hardware Company were merchants in Sandersville, Georgia. A man came into their store to buy a gun, and selected one for $40. He tendered in payment a check for $297.51, and asked that the price of the gun be deducted from the amount of the check, and the merchant pay to him the balance. The check was made payable to the order of “ Sill Huff, ” and the man stated to the merchant that he ...
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(After stating the foregoing facts). After careful consideration we are constrained to affirm the judgment of our learned brother of the superior court. The action as originally brought in the justice’s court, when considered in the light of the rule of liberal construction of actions in justice’s courts, was sufficient without amendment to show a suit on account. When the amendment was filed the ...
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1. In a bilateral contract of sale an obligation by the seller to deliver to the buyer by a certain date a gross quantity of a certain commodity for a certain estimated price, as “ 1000 gross of round quart bottles . . at the rate of $1.80 per gross,” but which must be delivered in certain stipulated quantities periodically ar certain designated periods, is entire, and a failure by him to make any...
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Where two parties are guilty of separate acts of negligence which jointly and concurrently co-operate and cause an injury, the parties are joint tort feasors. In a suit against two defendants a petition is not subject to demurrer upon the ground 'that there was a misjoinder of actions or parties defendant, where the petition alleges that the plaintiff was injured in a collision between two automob...
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1. Probable cause alone, without any proof of the absence of malice, is a defense to a suit for a malicious prosecution or a malicious use of legal process. Upon the trial of an action for malicious use of legal process it was therefore error to charge that if the prosecution, which was a trover suit to recover a piano, instituted against the plaintiff by the defendant, and which caused the plaint...
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1. A blank indorsement of the payee of a mortgage-note is sufficient to pass the legal title in the note and mortgage to the holder thereof, and the mortgage may be foreclosed by the holder in his own name. Civil Code (1910), §§ 3278, 3345, 3346, 3347, 4274; Seize v. First National Bank of Pensacola, 140 Ga. 603 (79 S. E. 540). 2. The plea of failure of consideration not being stricken, and it not...
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1. In a suit against the maker by the transferee of a series of promissory notes falling due consecutively, some of the notes appearing on the face to have matured and the others appearing not to have matured, where the defendant admits the execution of the notes and the indebtedness represented by them, and does not deny the allegation in the petition that the entire series is due by virtue of th...
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1. A plaintiff in trover must recover on his own title and not on a lack of title in the defendant. Where it appears that the title was originally in the plaintiff and would have continued in him but for a sale by him to one from whom the defendant claims title, the plaintiff may, in establishing his own title, show an adjudication voiding the sale and re-establishing his title, had in a proceedin...
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1. A lease contract executed by the tenant under seal and by the landlord not under seal, while not a contract under seal, is never theless a valid simple contract in writing. See, in this connection, Allen v. Montgomery, 25 Ga. App. 817 (105 S. E. 33). 2. Except in cases of a tenant at will or sufferance, a tenant may be dispossessed by summary proceedings only when he fails to pay the rent when ...
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1. Failure of a municipal corporation to use due care in maintaining its streets in a condition safe for persons traveling over them renders the municipality liable to any one injured without fault on his part on account of any negligently permitted defect in a small bridge or timbers placed across a ditch in the street. 2. Where a bridge over a ditch along a public thoroughfare in a city is cover...
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1. Section 3556 of the Civil Code (1910), which provides that where the fact of suretyship does not appear upon the face of the contract it may be proved by parol provided the surety gives notice to the principal of his intention to make such proof, applies only to cases *332■where the defendant seeks to establish himself as a surety, not by way of a plea in bar to a suit against him on the contra...
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In conformity with the rulings made in this case by the Supreme Court on a writ of certiorari (151 Ga. 57, 105 S. E. 846) the previous judgment of this court, affirming the judgment of the court below (24 Ga. App. 497, 101 S. E. 541) is vacated, and the judgment of the superior court, in directing a verdict for the defendant, is reversed. Judgment reversed. Stephens and Hill, JJ., concur. ...
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1. Under the provisions of section 5185 of the Civil Code • (1910), it is the general rule that before any writ of certiorari shall issue, the party applying for the same shall give bond and security for *333all future costs and tlie eventual condemnation money, payable to the adverse party, and if he fails so to do the superior court does not acquire jurisdiction of the case. Miller v. Adamson, 1...
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1. A motion to dismiss the bill of exceptions “ because same does not properly sliow any service . . upon the defendant in error ” will be denied when counsel for the defendant in error, in their brief filed in this court, admit “ that due and legal service was acknowledged by its attorneys upon a paper which was properly entitled in the cause,” and where such acknowledgment of service appears on ...
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1. A real-estate brokerage contract which provides that the agent may sell, or through his influence may sell, certain real estate for the owner is not breached by the agent by procuring another real estate *337dealer to obtain a purchaser. It being within the contemplation of the contracting parties that the agent will not necessarily be required to personally perform his duties under the contrac...
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1. “ Pleas to the jurisdiction must be pleaded in person and must, when relied on, be pleaded specially, unless a want of jurisdiction appears on the face of the proceedings, in which ease it may be taken advantage of. on motion.” Civil Code (1910), § 5665. The defendant, not having filed a special plea to the jurisdiction, cannot raise ■the question in his plea by a general denial of facts allege...
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1. During an investigation by the proprietor of a mercantile house of the loss of a pair of shoes, which one of the clerks admitted was taken by him but not with a felonious intent, a charge by the proprietor, that the clerk stole the shoes, made in the presence of one of the other clerks and to certain members of the family of the clerk charged with the theft, when made only for the purpose of ef...
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1. A bailee who has exercised, the proper degree of care and diligence in protecting and keeping safely the thing bailed is relieved from any liability for its loss or destruction; but on proof of loss the burden is upon the bailee to show that he has exercised the proper degree of care and diligence. Civil Code (1910), §§ 3469, 3470. “If the bailment is for the benefit exclusively of the bailee, ...
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dissenting. “ A libel is a false and malicious defamation of another, expressed in print, or writing, or pictures, or signs, tending to injure the reputation of an individual, and exposing him to public hatred, contempt, or ridicule.” Civil Code (1910), § 4428. There is authority to the effect that any defamatory charge amounting to a libel is actionable without proof of special damage to the pers...
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Dawson Brothers Manufacturing Company sued O. L. Stamps on a promissory note for $700. The defendant pleaded failure of consideration. The evidence showed that on or about June 7, 1918, the plaintiff entered into a written con*350tract with the defendant to sell and ship to him 50 barrels of unsweetened apple juice in good second-hand barrels. About 30 days after the goods had been received by the...
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Tlie judgment originally rendered by this court in this case (24 Ga. App. 528), having been reversed by the Supreme Court (151 Ga. 187, 106 S. E. 186), the former judgment of this court is vacated, and the judgment of the trial court is Reversed. Broyles, G. J., and Bloodworth, J., concur. ...
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This was a suit upon a policy of life insurance issued by the New York Life Insurance Company. A verdict was returned in favor of the plaintiff, and a new trial was denied. The undisputed evidence showed that the insured, in his written and signed application for the policy sued upon, made a false representation as to a matter material to the risk, to wit,’that no application for insurance upon hi...
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The motion of counsel for the plaintiff in error to amend the bill of exceptions by making Mrs. Sallie May Woodruff a party thereto is granted, and the motion of counsel for the defendant in error to dismiss the bill of exceptions is denied. *353On April 16, 1917, Loganville Banking Company obtained judgment for a large sum of money against S. N. Forrester. On August 31, 1917, a fi. fa. was issued...
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This case is controlled by the decision this day rendered in Loganville Banking Co. v. Brodnax, ante, p. 352. Judgment affirmed. Broyles, G. J., and Bloodworth, J., concur. ...
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1. The allegations in a petition are sufficient to charge the defendant'with having wantonly injured the plaintiff after his perilous position as trespasser upon the defendant’s tracks had become known to the servants of the defendant operating and controlling the movements of an approaching train, where the petition alleges, that the plaintiff, in approaching the defendant’s railroad-tracks at a ...
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1. In a suit against a railroad company to recover for dam-, age alleged to have been caused by the emission of sparks from a passing engine of the defendant, where the undisputed evidence shows that the defendant’s engine was, at the time it is alleged the sparks were emitted, equipped with a proper spark-arrester in good condition, and there is no affirmative evidence, either positive or circums...
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1. Facts wliieli are in law insufficient to authorize a conviction of a specific crime may nevertheless afford probable cause for the institution of a prosecution for such crime. Facts which do not authorize a conviction of simple larceny may afford probable cause for a prosecution for such crime when they do authorize a conviction of larceny after trust. 2. In a suit for malicious prosecution, it...
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1. A purchaser under a contract for sale of personalty, who by terms of the contract must perform a certain obligation resting upon him as a condition precedent to a performance of the obligations resting upon the seller, must -show a performance, or an offer to perform prevented by the seller, of such obligation on his part, as a condition pre-cedent, before he can maintain an action against the ...
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1. Possession alone by the purchaser under a parole contract for sale of land is insufficient to take the contract without the statute of frauds. Civil Code (1910), §§ 4634, 4636. 2. Valuable improvements made by the purchaser, which when coupled with possession alone will take the contract without the statute, must be improvements substantial and permanent, in their nature and such that no one bu...
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1. The defendant in a suit for a breach of contract cannot claim the benefit of the statute of frauds unless the statute is pleaded. Johnson v. Latimer, 71 Ga. 470(3). Where he has failed to plead the statute he cannot be heard to except to the direction of a verdict against him upon the ground that the contract is within the statute. 2. While “ direct testimony as to market value is in the nature...
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1. A builder’s contract providing for the erection of a building, which is to be of such size and dimension as to require its foundation to be constructed with special reference to the character of the ground upon which it is to rest, contemplates not only the erection of a properly constructed building under the terms of the contract, but also contemplates the construction of a suitable and safe ...
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1. This court having in a judgment rendered in this case (24 Ga. App. 732, 102 S. E. 175) affirmed the judgment of the city court of Atlanta, and the Supreme Court on certiorari having reversed the judgment of this court (151 Ga. 123, 106 S. E. 179), the judgment of affirmance originally rendered by this court must be vacated and the judgment of the trial court reversed. Judgment reversed. JenM...
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1. “A writ of certiorari in a civil case, unless sued out in forma pauperis, is absolutely void if it be issued before the applicant has given the bond prescribed by law; and the bond, to be effectual, must be approved by the judge or justice of the court in which the case was originally tried. A certificate of the trial magistrate that the plaintiff ‘lias paid all costs accrued in the trial and g...
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1. The “sale-in-bulk act” of this State (Civil Code, 1910, §§ 3226-9) applies only to sales of “ any stock of goods, wares, or merchandise in bulk ” by a merchant, trader, or dealer in such articles. A bona fide purchaser for value of any stock of “goods, wares, or merchandise in bulk ” from a vender who is not such a merchant, trader, or dealer acquires good title to the property, even though he ...
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1. Where two parties by negotiations through written correspondence have arrived at an agreement which, without more, amounts to a complete contract, but immediately thereafter, and before the performance by either party of any act under the agreement, execute a formal agreement in writing containing other stipulations regarding the subject-matter in addition to those contained in the corresponden...
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1. Where it does not appear that the charter of a benefit society prohibits the society from designating what classes of persons may be named as beneficiaries in the benefit certificates issued by it to its members, and where there is nothing in the laws of the State in which the charter is granted prohibiting such designation, a rule or law of the society, printed on the back of the certificate a...
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1. Where a scire facias has issued upon a forfeiture of a criminal recognizance, it is no defense by the surety that his principal was not brought to trial at the subsequent term of court after having made a legal demand for a trial at the former term as provided in the Penal Code (1910), § 983, when it does not appear that the principal had been discharged and acquitted or was legally entitled to...
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1. Upon the trial of an issue formed upon a summary proceeding under the Civil Code (1910), § 5385, by a landlord to dispossess his tenant for failure to pay rent, where judgment goes against the tenant, the landlord is entitled to recover double the rent reserved or stipulated to be paid, unless the tenant was one at will or sufferenee; in either of which latter events the landlord is entitled to...
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1. Where the constitution, and laws of a fraternal benefit society provide that “ no officer, employee or agent of the Sovereign Camp, or of any Camp, has the power, right, or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary, or waive any of the provisions of this constitution, or these laws, nor shall any custom on the part of any Camp or...
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1. Where it is recited in a bill of exceptions in a criminal case that it is tendered “ within the time allowed by law,” and there is nothing in the bill of exceptions or the entries thereon, or in the record, tending to show that perhaps, as a matter of fact, the bill of exceptions was not so tendered, except that it was signed by the judge more than 20 days after the date of the judgment excepte...
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Upon conflicting evidence, the jury found in favor of the plaintiff; the verdict has the approval of the trial judge, and, the only assignment of error being that the verdict was contrary to the evidence, it was not error to overrule the motion for a new trial. Judgment affirmed. Broyles, O. J., and Bloodworth, J., concur. ...
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This case arises by reason of a suit for damages, wherein the plaintiff alleges that while she was a passenger in an automobile traveling along one of the streets in the City of Atlanta, an automobile driven and owned by one Shivery collided with the machine in which she was riding, and, as a result thereof, she was thrown from her machine and suffered injury. The suit is not against the owner and...
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This case arises by reason of a suit to recover damages from the Federal director-general, operating the Seaboard Air-Line Railway, for alleged damage to an automobile, the property of the plaintiff. The evidence was conclusive that at Dorchester, a station on the line of railroad, there was a crossing over its track; that the track was perfectly straight for several miles, and there were no obstr...
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1. The assignment of error upon the ground that the verdict is a chance or quotient verdict is without merit, and is controlled by the case of City of Columbus v. Ogletree, 102 Ga. 293(8) (29 S. E. 749). 2. Damages are given to compensate for the injury sustained (Civil Code (1910), § 4390) ; but where the evidence was conflicting, and the jury might have been warranted in finding for the defendan...
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1. Suit was brouglit by Wrens Motor Company against Murpliree, upon a check drawn upon a bank, payable to one Williams, and by Williams indorsed in blank to Wrens Motor Company. Murpliree admitted a prima facie case in the plaintiff, and assumed the burden of proving the defense of failure of consideration. The evidence was not sufficient to legally carry the burden, and the verdict in favor of th...
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(After stating the foregoing facts.) The policy sued on contained the following clauses: “Affirmative proof of loss must be furnished to the company at its said office in case of claim for loss of time from disability, within ninety days after the termination of the period for which the company is liable, and in case of claim for any other loss, within ninety days after the date of such loss. No a...
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This case comes to this court upon exceptions to the first grant of a new trial. Section 6204 of the Civil Code of 1910 is as follows: “ The first grant of a new trial will not be disturbed by the Supreme Court, unless the plaintiff in error shows that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge....
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(After stating the foregoing- facts.) Under the record as it comes to us the only question lor determination — and the only one argued in the brief of plaintiff in error — is whether or not the court erred in overruling the general demurrer. To impute to another a crime punishable by law is slander. Civil Code (1910), § 3433. Section 743 of the Penal Code of 1910 is as follows: " If any person sha...
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1. Where the purchaser of goods seeks to recover of the seller damages for non-delivery, measured by the difference between the contract price and the price on a resale, he should both allege and prove that at the time of making the contract of the sale the seller had notice of such contract of resale. See Truitt v. Rust & Shelburne Sales Co., 25 Ga. App. 62 (102 S. E. 645). 2. Where the buyer in ...
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Counsel for the plaintiff in error, in their brief in this court, argue only as to the ruling on the demurrer, which they sought to bring to this court by a bill of exceptions which assigned error on that ruling and recited the filing of exceptions pendente lite thereto which were brought up as a part oE the record. “ Before exceptions pendente lite can be considered by this court, error must have...
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In the municipal court of Atlanta Mrs. McMahon sued Wells on a promissory note. Admitting that the *398amount sued for was correct, the defendant pleaded a set-off. On conflicting evidence the jury found for the plaintiff the full amount sued for. The defendant applied for a writ of certiorari, alleging that “ said verdict and said judgment thereon was contrary to the evidence, without evidence to...
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1. If tlie court erred in tlie admission of certain irrelevant and immaterial evidence as complained of in tlie first and second grounds of tlie amendment to tlie motion for new trial, this evidence-was not of such materiality as to require the grant of a new trial. See Arnold v. Stevens, 139 Ga. 495 (77 S. E. 579) ; Ga., Fla. & Ala. Ry. Co. v. Parsons, 12 Ga. App. 180(6) (76 S. E. 1063). 2. “Wher...
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This case arises by reason of a suit to recover damages, wherein it is alleged that the plaintiff was riding as an invited guest in an automobile owned and driven by the defendant; that while so riding as such invited guest, along with other members of her family, who were also invited guests, the defendant carelessly and negligently, and because of inexperience and lack of skill in the handling o...
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This case arises by reason of a suit by Coleman, against the Savannah Bank and Trust Company for $8,023.33. The plaintiff’s petition alleges substantially; that he shipped to the *401Producers Naval Stores Company, who were naval-stores factors, 432 casks of spirits of turpentine, with instructions to place the turpentine in tanks; that the turpentine was placed in tanks of the National Tank and E...
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1. Upon the petition for certiorari and the answer of the justice of the peace it was not error for the judge of the superior court to overrule the certiorari. Judgment affirmed. Broyles, O. J., and Bloodworih, J., concur. From the magistrate’s answer to the certiorari it appears that the-plaintiff testified as follows: “On the 9th day of November, 1919, I purchased a first-class ticket from D...
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This case arose by reason of a suit upon an open account. Upon conflicting evidence the jury found a verdict for the plaintiff; the verdict has the approval of the trial judge, and, there being no merit in the special grounds of the motion for new trial, it was not error to overrule the motion for a new trial. . Judgment affirmed. Broyles, G. J., and Lulce and Bloodworih, JJ., eonour. Complain...
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Hunnicutt sued the Georgia Railway & Power Company and Weisinger for damages for alleged personal injuries. The case was in default as to Weisinger, and the jury rendered a verdict against him alone. The evidence was conflicting, and would have supported a verdict either way. The only question for decision can be best understood from the following statement in the motion for a new trial: “ Upon co...
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In this case an administratrix sought to recover damages on account of the death' of her husband, alleged to have been caused by the negligence of the defendant. The action was brought under the statutes of South Carolina, the injury and death of the deceased having occurred in South Carolina, and the defendant being resident of Chatham county, Georgia. The plaintiff’s petition alleges, substantia...
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1. Where a bank receives cotton as collateral security for a debt evidenced by certain promissory notes, and thereafter makes an express contract with the owner of the cotton, that if the latter will sell a portion of the cotton and apply the proceeds of the sale as part payment on the notes, it (the bank) will hold the remainder of the cotton until instructed by the owner to sell, and where the o...
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It is well settled that an untr aver sed answer of the magistrate to a petition for certiorari, and not the petition, is controlling upon the superior court and this court, and that points made in the petition for certiorari, but not verified by the answer of the magistrate, cannot be considered by either court. In the instant case the only point that the petition for certiorari raises which was i...
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When this ease was here before, the judgment of the trial court, overruling a general demurrer to the petition, was reversed (Rowell v. Harrell Realty Co., 25 Ga. App. 585 (103 S. E. 717). Upon the receipt of the remittitur by the trial court, but before it had been made the judgment of that court, the plaintiff offered an amendment to its original petition. This amendment was disallowed by the co...
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1. Motions to continue are addressed to the sound legal discretion of the court. Renal Code (1910), § 992. When all the facts shown on the motion to continue this ease are considered, especially in connection with the qualifying note of the judge to this ground of the motion, we cannot say that the judge abused his discretion in overruling the motion to continue. 2. The court did not err in refusi...
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The motion for a new trial contained only the usual general grounds; the verdict was amply authorized by the evidence; and the court did not err in declining to grant a new trial. Judgment affirmed. Broyles, G. J., and Luke, J., concur. ...
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Henry Appling was convicted under an indictment which, charged him with assault with intent to murder Henry Esquire by shooting the said Esquire with a pistol. The evidence shows that the accused shot at Willie Askew four times with a pistol, one shot hitting him. There is not a particle of evidence to show that the accused-shot, or shot at, Henry Esquire, or that Henry Esquire was ever known as W...
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1. A ground of a motion for a now trial which complains of the admission of specified testimony must state the name of the witness whose testimony is complained of. Adams v. State, 22 Ga. App. 252 (95 S. E. 877), and cases cited. Under this ruling the 4th ground of the amendment to the motion for a new trial cannot be considered. 3. The 5th ground of the amendment to the motion for a new trial, af...
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1. A ground of a motion for a new trial which complains of the admission of specified testimony must state the name of the witness whose testimony is complained of. Adams v. State, 22 Ga. App. 252 (95 S. E. 877), and cases cited. Under this ruling the 4th ground of the amendment to the motion for a new trial cannot be considered. 2. The complaint that the court failed to charge upon the law of cir...
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In a prosecution under sections 715, 716 of the Renal Code of 1910 (known as the “labor-contract act”), the burden is upon the State to show affirmatively that the accused failed to perform the services contracted for, or failed to return the money advanced on the strength of the contract, “ without good and sufficient cause.” Allen v. State, 22 Ga. App. 274 (95 S. E. 872),' and authorities cited....
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This case is. here for review upon the sple assignment of error that the verdict of guilty was not authorized by the evidence. The evidence was weak; yet the jury had a right to believe, and did believe, the evidence of the prosecutor, which *424evidence was sufficient to authorize the conviction of the defendant. The verdict, having the approval of the trial judge, and there being evidence to sup...
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The court did not err in charging the jury as complained of in grounds 4 and 7 of the amendment to the motion for a new trial; the other grounds of the motion are not argued; there is evidence to support the verdict, and the judgment is Affirmed. Broyles, O. J., and Lulce, J., concur. ...
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1. Before exceptions pendente lite can be considered by this court, error must have been assigned in the main bill of exceptions upon the exceptions pendente lite, and not merely upon the judgment complained of in the exceptions pendente lite, or such' an assignment must be made, by the permission of this court, before the argument of the case here. Ponder v. State, 25 Ga. App. 768 (105 S. E. 318)...
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1. The motion for new trial contained only usual general grounds; the verdict was amply authorized by the evidence; and the court did not err in declining to grant a new trial. Judgment affirmed. Broyles, O. J., and Luke J., concur. ...
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The conviction in this case depended wholly upon proof of the recent possession of the defendant of the property alleged to have been stolen; and, this possession having been fully explained, the evidence *428did not authorize the verdict, and the court erred in overruling the motion for a new trial. Brooks v. State, 21 Ga. App. 661 (94 S. E. 810), and cases cited. Decided March 8, 1921. Accusatio...
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The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial, which contained only the usual general grounds. Judgment affirmed. Luke and Bloodworth, JJ., concur. ...
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The accusation charged that the defendant unlawfully operated a motor-vehicle upon a public highway “ at a greater speed than ten miles per hour upon approaching a sharp curve and traversing said sharp curve.” A demurrer to the accusation was overruled and exceptions pendente lite were filed. This ruling and the overruling of the defendant’s motion for a new trial are assigned as error in the main...
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Tlie evidence in this case fully authorized the verdict, which has the approval of the trial judge. The special grounds of a motion for a new trial which complain of excerpts from the charge of the court, when the charge of the court is read in its entirety, are without merit. The newly discovered evidence is not such as would he likely to produce a different verdict upon another trial of the case...
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Under all the facts shown on the motion to ccntinue this case, we can not say that the trial judge abused his discretion in refusing to continue .the case. Judgment affirmed. Broyles, G. J., and Lulce, J., concur. In the motion for a continuance it is stated: The shooting occurred at Surrency, in Appling county, Georgia, in the presence of Lillie Bell Norwood and Estelle Walker, who both resid...
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“ The decision of the superior court on certiorari reversing the judgment of a municipal court convicting one of a violation of a municipal ordinance is not subject to review by this court. Mayor &c. of Hawkinsville v. Ethridge, 96 Ga. 326 (22 S. E. 985) ; Mayor &c. of Macon v. Wood, 109 Ga. 149 (34 S. E. 322).” City of Valdosta v. Goodwin, 21 Ga. App. 664 (94 S. E. 812). Writ of error dismissed....
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The evidence was sufficient to authorize the conviction of the defendant; and the verdict, having the approval of the trial judge, cannot be set aside by this court. The single assignment of error upon an excerpt from the charge of the court, as to the effect of evidence of good character of the accused, is without merit, when the charge on that subject is read in its entirety. See, in this connec...
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1. Upon tlie bearing of a motion to change the venue in a murder case, upon tlie ground that there is probability or danger of lynching or other violence being done to the petitioner, if the evidence submitted reasonably shows that there is probability or danger of lynching, or other violence, then it is mandatory upon the judge to change the venue to some county in the State where, in his judgmen...
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1. Exceptions pendente lite cannot be considered unless error is assigned thereon, either in the main bill of exceptions or in this court by counsel for plaintiff in error, before the argument begins. In the *439instant case, there is no assignment of error on the exceptions pendente lite. The ruling complained of, having been made some several months before the bill of exceptions was presented, c...
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It appearing from the recitals in the bill of exceptions that it was tendered to the trial court more than 20 days after the date of the judgment complained of, the writ of error, must be Dismissed. Broyles, O. J., and Bloodworth, J., concur. ...
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The plaintiff’s petition substantially alleged, that the defendant was in possession of $514 belonging to plaintiff, which the defendant was in equity and good conscience bound to repay him on an implied promise so to do; that on March 1, 1919, the plaintiff, through the defendant, entered into a contract with one Cobb, whereby he agreed to purchase from Cobb described lands; that the plaintiff th...
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1. In this case the plaintiff sued for $100, alleged to be due as salary for a time extending from April 15, 1919, to May 1, 1919. The plaintiff contended, and adduced evidence to show, that he was employed by the defendant to Avork for it from October 14, 1918, to October 14, 1919, for a salary of $3,400 a year, his salary being paid semi-monthly, and that he was discharged and was paid nothing a...
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Alexander, as receiver of the Irish American Bank, sued Morrison upon four promissory notes. The defendant filed pleas admitting the execution of the notes, denying the indebtedness thereon as alleged, and pleaded partial payment. He pleaded further that while one of the notes sued on was payable to the Irish American Bank, it was not in fact the property of the Irish American Bank, hut was the pr...
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1. The interlocutory ruling of the court, in recommitting to the auditor his report for the purpose of per-, fecting it, was excepted to pendente lite by the plaintiff in error, but in the main bill of exceptions there is no assignment of error upon the exceptions pendente lite themselves; error is assigned merely upon the ruling therein complained of. Under the ruling in Ponder v. State, 25 Ga. A...
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(After stating the foregoing facts.) 1. There is no merit in the contention that it was not proper to bring the suit in the name of Bean, suing for the use of McNesser. West v. Morris, 10 Ga. App. 651 (73 S. E. 1075). 2. The proffered amendment to the defendant’s answer, which alleged fraud in the procurement of the contract, was properly disallowed, since the facts therein set forth were insuffic...
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1. Exceptions pendente lite cannot be considered unless error is assigned thereon, either in the main bill of exceptions or in this court by counsel for plaintiff in error, before the argument begins. See Shaw v. Jones, 133 Ga. 446(1) (66 S. E. 240), and cases cited. In the instant case the bill of exceptions recites that to the order of the judge refusing to open the default which had been entere...
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Where a contract for the sale or exchange of land was headed “Atlanta, Ga., 3/1/1920,” and described the property to he sold as “8. Boulevard Street, No. 667, size of lot 50 x 200, No. of rooms 6, stories 1,”' with description as to the finish of the house, etc., the description was not so vague and indefinite as to render subject to general demurrer a petition for the recovery of a real-estate br...
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Only the second headnote needs elaboration. It appears, from the evidence, that the purported grantor and the two attesting witnesses whose names were signed to. the deed in question were all three dead; and no eye-witness to the making of the deed, or to its attestation, was offered, either by the State or by the accused. To prove that, the deed was a forgery, the State relied upon witnesses who ...
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Dr. Lingo brought suit against F. A. White in the municipal court of Atlanta, upon a forty dollar check, and obtained judgment for the full amount of the cheek, and the defendant carried the case to the superior court by certiorari, the certiorari was sustained, and final judgment was entered in favor of the defendant. It is on exception to this judgment that the case comes to us for review. The e...
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By statute it is provided that where a person “ owns or keeps a vicious or dangerous animal of any kind, and by the careless management of the same, or by allowing the same to go at liberty, another without fault on his part is injured thereby, such owner or keeper shall be liable in damages for such injury.” Civil Code (1910), § 4417. This suit was brought under the foregoing section, for persona...
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The judgment of the judge of the superior court sustaining the certiorari in this case has the effect of granting a new trial; and this being the first grant of a new trial, and the evidence not having demanded the verdict, under repeated rulings of the Supreme Court and of this court the judgment of the judge of the superior court will not be set aside. See Shirley v. Swafford, 119 Ga. 43-4 (45 S...
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Freddie Sanders was indicted jointly with his father, West Sanders, for the murder of John Adams, and, being separately tried, the son was found guilty of voluntary manslaughter. From the defendant’s statement at the time and the conflicting evidence, the jury were authorized to find the following facts: On the day before the homicide West Sanders wrongfully killed a hog belonging to Adams, while ...
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Under repeated rulings of the Supreme Court, by which this court is bound, this court will not review the evidence in a case when the evidence has not .been briefed as required by law. In the instant case there was no attempt to brief the evidence at all, the evidence sent to this court in the transcript of the record being apparently the evidence in full, with questions and answers, interspersed ...
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1. The first ground of the amendment to the motion for a new trial alleges that the court erred in not sustaining the objection of counsel for the defendant to a certain question propounded to a witness and to the answer thereto, but it is not stated in the ground what the objection was. In the same ground complaint is made that the court, on its own motion, directed the solicitor-general to ask t...
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1. The instructions as to impeachment of witnesses, complained of in the first ground of the amendment to the motion for a new trial, were authorized by the evidence, and, when considered in connection with the entire charge of the court, present no reason for a reversal. 2. The court properly excluded the testimony complained of in the 2d ground of the amendment to the motion for a new trial. 3. ...
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1. The defendant in this case was convicted of a misdemeanor. The evidence was conflicting. If the jury had believed the evidence for the defendant, a'verdict in his favor would have been demanded. The evidence for the State was weak, but the jury believed the one witness- for the State who testifie'd positively to'the commission of the offense. Therefore, the verdict of guilty having the approval...
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1. In this case the State questions the sufficiency of the approval of the grounds of the motion for new trial, and insists that there is no proper approval of such grounds. No motion was made to dismiss the motion for a new trial, and the question for the first time, upon the sufficiency of the approval of the special grounds of the amended motion for a new trial, is raised here by the State. Sin...
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1. Although a shipper who has sustained damage by reason of a breach of the common-law duty of a railroad company as a common carrier, to furnish cars for the transportation of freight within a reasonable time, is not prevented by the act of 1907 (Ga. L. 1907, p. 84; Civil Code of 1910, § 2774 et seq.) from instituting a common-law action for damages, instead of pursuing the remedy provided by tha...
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The indictment in this case charges the accused, Guy Stringer, with stealing “one Eord Five Passenger Touring ear, 1918 Model, with bright bumper in front, with the two outside isinglass windows in the rear of same torn, of the value of six hundred dollars, the property of J. I. Lowe. ” Ground 5 of the amendment to the motion for a new trial is as follows: “ Upon the trial of said case, and during...
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Certain goods shipped by the plaintiff to the defendant were destroyed by fire without fault on the part of the defendant. The sole issue on the trial was whether the goods had been sold or consigned. If they were sold, the defendant was liable for the purchase-price as sued for; but if consigned, the plaintiff could not recover. The jury found for the plaintiff. Meld-. 1. The verdict was authoriz...
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1. The petition was not subject to general demurrer. Whether the defendant was negligent in permitting the bales of cotton to fall from the dray upon the city streets, whether he was negligent in permitting them to there remain for an undue and unreasonable length of time, and whether such bales of cotton, showing the white sample splotches when left at night in such an unusual place, were calcula...
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1. “ The removal of obstructions from a private way is a matter for the decision of the ordinary, and a certiorari to a decision on such a matter will not be dismissed because exceptions to the decision were not tendered at the time in writing.” Fortson v. Mattox, 67 Ga. 282(1). 2. “ Before an applicant can have obstructions removed from a private way, he must show not only that there has been an ...
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In regard to the city ordinance referred to in the 3d headnote, the court charged the jury as follows: “There is a valid municipal ordinance of the city, which requires that any person or persons operating or driving any vehicle upon the streets and lanes of this city, when turning into a street to the right, shall keep close to the right curb, and when turning into the street to the left, shall s...
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1. “As a general rule, a servant is under no obligation to inspect the appliances about which he works or that part of the plant by which his safety may be affected, for the purpose of discovering concealed dangers which would not be disclosed by superficial observation. ” Southern Cotton Oil Co. v. Dukes, 121 Ga. 787 (2) (49 S. E. 788); Austin v. Appling, 88 Ca. 54, 57 (13 S. E. 955); Cochrell v....
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In 1909, Florence, Phillips & Company orally contracted with J. T. Newsome for the purchase of certain pine timber for $600. The purchasers paid $400 on the agreed price. They cut and removed most of the timber in 1909, and then moved their sawmill from Newsome’s premises. In June, 1912, Newsome filed suit against the purchasers' for $200 balance due on the purchase-price. Paragraph 3 of his petit...
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(After stating the foregoing facts.) 1. The first ground *506in the motion for a new trial complained of the amount of the verdict, alleging that it was excessive. The code of this State (Park’s Code, § 4399) provides that, the question of damages being one for the jury, the courts should not interfere unless the damages found were so small or so excessive as to justify the " inference of gross mi...
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The plaintiff, a widow, sought to recover damages on account of injuries to her minor son, alleging that the defendant corporation knowingly put him to work without her consent, in a different position from that in which, under the contract between her and the defendant, he was to be employed, and that he received the injuries as a consequence of such change of work. This issue was correctly prese...
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1. Where a judge is related by affinity to one who is an officer and stockholder of a plaintiff corporation, by reason of the grandmother of the judge’s wife and the grandmother of such officer having been sisters, the relationship is in the third degree, under the rule of the canon law, and falls within the inhibition of section 4642 of the Civil Code (1910). Such a judge is disqualified from sit...
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(After stating the foregoing facts.) 1. The objection that there was no order of the court allowing the amendment to the plea to be filed at the first term was too late, having been made for the first time in this court. In Smith v. West, 134 Ga. 11 (67 S. E. 405), the court says: "In specifying the parts of the record to be sent up to this court the additional answer is mentioned . . It is too la...
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By authority of the decision of this court in Moore v. May, 10 Ga. App. 198 (73 S. E. 29), and section 3587 of the Civil Code of 1910, the judgment overruling the demurrer to the petition is reversed. Judgment reversed. Jenkins, P. J., and Stephens, J., concur. ...
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(After stating the foregoing facts.) 1. It is well established, on principle and authority, that cí a master is answerable for defects in any instrumentalities which he has temporarily taken over from the owner and made a part of his own plant. . . So far as regards his obligations to his servants he must be considered as the owner pro tempore. ” 3 Labatt’s Master & Servant, § 1074; 1 Sherman & Re...
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1. Where the judge who heard the motion for a new trial was not the judge who presided at the trial of the case, the rule with reference to the weight of the opinion of the trial judge upon the facts does not have the same broad application. Monahan v. National Realty Co., 4 Ga. App. 681(8) (62 S. E. 127) ; Ford v. Harris, 4 Ga. App. 467 (61 S. E. 881). 2. Where a contract gives to the purchaser o...
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This was a proceeding under a dispossessory warrant and a counter-affidavit (Civil Code of 1910, §§ 5385-6). The verdict was as follows: “ We the gentlemen of the jury find in favor of the plaintiff entitled to recover $420.00. July 6th, 1920. ” On this verdict the court rendered the following judgment : “ The above-stated case having come on in its regular order for trial on the 6th day of July, ...
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This being a suit in trover, two things are essential to show a right of recovery,— title in the plaintiff and possession in the defendant. Of these essentials the first was admitted. The evidence as to the second consisted of an implied admission of the defendant; and, while the evidence on this point is exceedingly weak, this court cannot say that there was no evidence whatever to support the ve...
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Stroup sued J. A. Crawford and W. S. Crawford for $250, alleging, in substance, the following facts: Plaintiff and defendants bought a described house and lot in Dalton as tenants in common. While plaintiff was in Florida the defendant W. S. Crawford wired him, asking for the lowest price for his interest in said house and lot. After some correspondence he offered to sell for $1,500, and this offe...
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1. This is a suit to recover damages upon two counts: (1) for “malicious abuse of legal process,” and (2) for “malicious use of legal process.” To support a recovery on the first count the evidence must show the wilful misapplication or perversion of a lawful process in order to obtain an object which such a process is not intended by law to effect. To support a recovery on the second count the ev...
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1. Where the entire description of land contained in a written agreement to sell was “five hundred acres of land in said county [Wilkes], in the 180th district, G. M., known as a portion of the Blakey Sutton lands,” the number of acres was of the essence of the description, and if it developed that in fact the number of acres subsequently sold under the agreement contained only 471% acres, the ven...
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(After stating the foregoing facts.) Yerdiets and judgments rendered by consent of counsel in *529good faitli and without any fraud or violation of express instructions given by the client to the attorney and known to the adverse party or his attorney are binding upon the client, the consent of counsel being in law the consent of the parties they represent. Civil Code (1910), § 4955. In the case o...
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(After stating, the foregoing facts.) Section 350 of the Penal Code of this State (1910) forbids the sale of pistols to minors and makes the violation of the statute a misdemeanor. It has been uniformly held in this State that a violation of a penal statute, resulting in injury, is negligence per se and authorizes a recovery by the party injured, without other negligence. Platt v. Southern Photo M...
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(After stating the foregoing facts.) The direction of a verdict for the plaintiff in fi. fa. was demanded. No other legal verdict could have been rendered. The property levied on was in the possession of the defendant in fi. fa. at the time of the levy. The title thereto became his when he paid the title-retention notes. The fact that the claimants had loaned to the defendant in fi. fa. the money ...
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1. A deed described tlie land conveyed as follows: “All that certain tract or parcel of land situate, lying and being in the 1192nd dist., G. M., of Toombs county, Georgia, containing fifty-six acres, more or less, and bounded as follows: ‘On the north by lands of W. Y. Bowen, on the east by lands of D. C. Newton & Son, on the south by land of W. J. Hall, and on the west by lands of Mrs. M. M. Jam...
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This is a suit upon an account. The plaintiff sold to the defendant some undertaker’s supplies, and the ’ defendant paid him his bill with the exception of $8.81, for which, this suit was brought. There is no conflict in the testimony. The whole case turns on the construction of the invoice and what is called the “term sheet,” which accompanied the invoice and was made a part of it. This invoice i...
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1. Upon tlie trial of an issue formed between a plaintiff in an attachment upon which a garnishment has issued and a claimant to a fund which the garnishee in his answer admits that he holds as the property of the defendant in attachment, where the evidence of the garnishee tends to show that the fund belonged, at the time of the levy, to the defendant in attachment, it is error to nonsuit the pla...
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Greenberg &' Bond Company was employed by two brothers to conduct the funeral of their mother, to furnish the coffin and robes and automobiles, and in general to see that the funeral was properly conducted. Greenberg & Bond Company did not .itself own automobiles, but was in the habit of hiring them, in connection with its business, from the Smith Taxicab Company and others. There is some conflict...
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1. The rule is well settled that where a question as to the sufficiency of the pleadings has been raised by demurrer, and the pleader seeks to conform to an adverse ruling by amending them so as to meet the objection and prevent a dismissal, he will not thereafter be heard to complain that the antecedent ruling to which he has thus submitted was erroneous, or that the amendment was unnecessary. Gl...
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1. It is the duty of a justice of the peace or other tribunal or person whose decision is sought to be reviewed upon certiorari, when answering the writ of certiorari, to certify and send up all of the proceedings in the cause to the superior court as directed in the writ of certiorari. Civil Code (1910), § 5183. The judge of the superior court therefore erred in overruling the exceptions to the a...
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(After stating the foregoing facts.) This is not a suit for the purchase-price of goods sold and delivered on *556open account. If such were its purport, then, under the facts disclosed by the record, it could not have been maintained. Maddox v. Wagner, 111 Ga. 146 (36 S. E. 609); Bridges v. McFarland, 143 Ga. 581, 583 (85 S. E. 856); Dilman v. Patterson Produce Co., 2 Ga. App. 213 (58 S. E. 365)....
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1. While it is the general rule that, in the absence of an agreement so to do, a landlord is not bound to repair a patent defect in a building, the existence of which was known to the tenant at the time the rent contract was entered into (Aikin v. Perry, 119 Ga. 263(3) (46 S. E. 93); Driver v. Maxwell, 56 Ga. 11(2) ; White v. Montgomery, 58 Ga. 204(1) ), this principle of waiver did not have appli...
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(After stating the foregoing facts.) It is a well-settled rule of law that for every breach of a contract the wrongdoer must respond to the injured party in damages to the extent and in satisfaction of the" injury received. “ In statutes or other legal instruments giving compensation for ‘ damages,’ the *561word always refers to some actionable wrong — some loss, injury, or harm which results from...
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The words, “ Eor value received we hereby assign, transfer, and set over to the Marion National Bank all our right, title, and interest in and to the within note and in and to the said Indiana Motor Trucks for which this note was executed,” written on the back of a promissory note and signed by the payee, is an indorsement oi[ the note. Vanzant v. Arnold, 31 Ga. 210(2) ; Baldwin Fertilizer Co. v. ...
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(After stating the facts.) 1. Where' property is placed in a broker’s hands for the purpose of sale, the broker’s commissions are earned when, during the agency, he finds a purchaser reader, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner. This is a fight given to brokers by statute, which has so frequently been emphasized by the decisions of the Supre...
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(After stating the foregoing facts.) . The case is controlled by the rulings of this court in two decisions: Southern Ry. Co. v. Tankersley, 3 Ga. App. 551 (60 S. E. 297), and Smith v. County of Jasper, 9 Ga. App. 667 (72 S. E. 65). In the first of these cases a mule was frightened by the approach of a train to a public crossing and ran away and injured the driver, and it was held that the proxima...
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Mrs. Lamb sought to recover for the wrongful death of her minor son. Her petition contained four counts. A demurrer was filed to all of the counts, and was sustained as to counts 1, 3, and 4, and overruled as to count 2. Exceptions pendente lite were preserved as to the judgment sustaining the demurrer as to counts 1 and 3. No exception was taken to the judgment on the demurrer as to count 4. The ...
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1. Where suit is brought by a servant against his master for injuries resulting from defective machinery, it must appear, before there can be a recovery, that the servant injured did not know and had not equal means of knowing of the defective condition of the machinery • alleged to have caused his injury, and by the exercise of ordinary care could not have known thereof. Civil Code (1910), § 3131...
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The foregoing headnotes are based upon the answers of the Supreme Court (151 Ga. 308) to questions certified by this court, and will not be elaborated further than to give the questions certified and the answers thereto. “ Per Curiam. The Court of Appeals certified the following questions: “ T. F. Cato sued the Southern Railway Company, alleging, *579in part, that he was in the employment of the P...
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When this case was first before this court (24 Ga. App. 796, 102 S. E. 364), the judgment of the lower court, dismissing the petition on general demurrer, was reversed, this court holding that the tax-receiver of Floyd county, under the act of 1918 (Ga. L. 1918, p. 110), was entitled to receive for his services for the entire year 1918 the same compensation received by the tax-collector of that co...
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The defendant was charged with the offense of assault with intent to murder, and was convicted of that offense by the jury, who, under the “indeterminate-sentence act” (Ga. L. 1919, p. 387), fixed his sentence at not less than two years nor more than two years. The defendant made a motion for a new trial, on various grounds, one of which complained that the court failed _ to charge the jury that t...
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1. In the motion for a new trial certain evidence is objected to as “ entirely immaterial.” In Thompson v. Thompson, 77 Ga. 692(7) (3 S. E. 161), it is held: “Neither the rejection nor admission of immaterial evidence is cause for a new trial.” If the court erred in the admission of the evidence complained of, it was not of such materiality as to require the grant of a new trial. See Arnold v. Ste...
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1. In Buckeye Cotton Oil Co. v. Everett, 24 Ga. App. 738 (102 S. E. 167), this court held that the petition in this case set out a cause of action. The evidence submitted at the trial supports the allegations of the petition and the verdict has the approval of the judge who tried the case. 2. Some of the special grounds of the motion for a new trial failed to conform to the rule laid down by the S...
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1. A contract is not unilateral where it consists of a written and signed order for specified goods at stated prices and of the addressee’s written and signed acceptance of the order. See Park’s Ann. Code, § 4230, with annotations under the catchword “Unilateral.” 2. Where a promissory note recites no consideration except in the words “for value received,” and suit is brought thereon by the payee ...
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It is recited in the bill of exceptions in this case that by agreement of counsel the issues upon two separate cases between the same parties were tried together before one jury. The record shows there were two separate verdicts. The plaintiff in error filed only one motion for a new trial, in which complaint is made as to the admissibility of evidence, and certain errors are assigned upon excerpt...
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Where personal property is delivered to the buyer under a contract of conditional sale which is in writing and duly attested and recorded as required by law (Civil Code of 1910, §§ 3318, 3319), the legal title will not vest in the purchaser until the purchase-price has been paid (Atkinson v. Brunswick-Balke Collender Co., 144 Ga. 694, 87 S. E. 891) ; and where such a purchaser sold the property an...
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1. The special grounds of the motion for a new trial not referred to in the brief of counsel for the plaintiff in error will be treated as abandoned. Cooper v. Ricketson, 146 Ga. 471(1) (91 S. E. 543) ; Daniel v. State, 24 Ga. App. 557(3) (101 S. E. 812). 2. No error of law is shown, and “ there being evidence to sustain the verdict, this court can not disturb the finding of the jury by overruling...
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In 1874 a tract of land in Burke county was set aside as a homestead, upon the application of James M. Ward, for the benefit of himself and his family. In 1876 a judgment was obtained against Ward and an execution was duly issued thereon. Upon his death his widow applied to the court of ordinary for a year’s support, and the appraisers set apart the said tract of land as a year’s support. Upon the...
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The accusation in this case alleged that the accused did “maliciously maim and kill” two cows and a small steer. The accusation does not allege in what manner they were killed, but the record shows that the State endeavored to prove that they were shot on a certain Sunday afternoon. *592While the steer was found dead in the field of the accused, and one of the cows near this field, there is no evi...
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1. It does not appear that the judge abused his discretion “ in refusing to allow the defendant to exhibit his limb to the jury ” during the trial of the case. 2. The charge of the court upon the subject of alibi was substantially correct and was not error for any reason assigned. 3. The ground of the motion for a new trial, complaining of the refusal of a certain request to charge, can not be con...
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1. This case is one of the rapidly increasing class of cases of homicide resulting from reckless and unlawful driving and speeding of automobiles along the highways of the State, The jury were authorized, upon conflicting evidence, to believe that an automobile was being driven along a street in a populous part of the City of Atlanta by the defendant, over the protest of his passengers, at a rate ...
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The. indictment in this case charged the accused with murder by rijpning an automobile against Miss.JDrunilln. Devlin. He was convicted of involuntary manslaughter. The evidence showed that, while the accused was driving an automobile at a high rate of speed over a country road in Jones county, Georgia, Miss Devlin was struck, and, from the injury thus inflicted, died the next day. *5981. A witnes...
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In this case the maker of the note sued on sought to set up a defense which might - have been good against the original payee, but was not good as against an innocent holder for value. The court ex-*604eluded evidence by which it was attempted to show equities existing between the maker and the original payee. Held,-. It was not error to exclude such evidence. The maker of the note could not, as a...
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1. The motion to dismiss the writ of error is denied. 2. This being the first grant of a new trial, and the evidence, including the alleged newly discovered evidence, not demanding the verdict returned, this court will not interfere. 3. The defendant brought the case- here, complaining of the first grant of a new trial, and also assigning error upon exceptions pendente lite to interlocutory ruling...
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1. Under the pleadings and the evidence a verdict in favor of the plaintiffs for the full amount of the principal and interest sued for was demanded, and the court did not err in so directing. *605Decided April 13, 1921. Complaint; from Candler superior court — -Judge Hardeman. December 4, 1920. Lanier, Deal & Renfroe, R. Lee Moore, Hines, Hardwiclc & Jordan, for plaintiff in error. Brannen & Boot...
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1. The court did not err in refusing to charge the jury as follows: “ The defendant has put his character in issue through his statement; this he has a right to do and can do just as effectively as by sworn testimony. I charge you that good [character] alone might sometimes, if the other evidence is doubtful, raise and generate a doubt in your mind and work an acquittal.” See, in this connection, ...
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1. “ All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make such objection will be treated as a waiver, and prevent the court, on a motion for a new trial, from inquiring as to the competency of the evidence.” Andrews v. State, 118 Ga....
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1. The petition as amended was defective in that it failed to allege that the bridge claimed to have been in disrepair was erected after the passage of the act approved December 29, 1888 (Ga. L. 1888, p. 39); and it should have been dismissed on the general demurrer interposed. Butts County v. Johnson, 136 Ga. 354 (71 S. E. 428) ; Salter v. Decatur County, 15 Ga. App. 687 (84 S. E. 162). *607Decid...
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1. The indictment charged the defendant with feloniously breaking and entering the storehouse of N. G. Maddox & Company, and with stealing therefrom certain described property “ of the said N. G. Maddox & Company, a partnership composed of Mrs. T. C. Stubbs and Mrs. N. G. Maddox, adm’x of N. G. Maddox.” Upon the trial the evidence showed that the storehouse of N. G. Maddox & Company was burglarize...
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In this case Palmetto Cotton Mills sought to recover from Estes the difference between the contract price and the market price of certain cotton duck. It was alleged, that Estes purchased 100 bales of cotton duck to be delivered within a certain time, and that he ordered out only 48 bales, the remaining 52 bales being kept stored by Palmetto Cotton Mills, subject to the order and shipping directio...
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The only question raised in this case is as to the sufficiency of the evidence. The evidence was in conflict, hut we cannot say that there was no evidence to support the verdict, since if the jury believed the evidence for the State — which they did — a verdict of guilty was authorized; and, the trial judge having approved the verdict, this court can not set it aside. Judgment affirmed. Broyles...
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The accusation in this case charged that the accused “ did unlawfully have, control, possess, and have in possession alcohol, alcoholic liquors, spirituous liquors, mixed liquors, whisky, brandy, wine, rum and gin.” Upon the trial a confession of guilt was clearly shown. In this confession the defendant stated that he had brought certain whisky from Jones county on the morning of January 7th and l...
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1. The amended petition was not subject to tbe demurrer. 2. On tbe ground tbat an opinion upon tbe facts of tbe case was expressed by the court in so charging, the defendant excepted to the following part of the charge to the jury: “ R. C. White brings his action against the defendant, P. D. Moore, for the recovery of certain alleged amounts, claimed to be due him as damages, brought about by reas...
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This case arose upon a petition to the ordinary to require the defendants to remove obstructions for an alleged private way. The evidence shows that .the defendants were the owners of certain lands and to the run of a creek over which people in the community had been traveling to reach the creek for picnicking, fishing, bathing, and for the purpose of baptizing *616converts of several churches in ...
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1. It was not error to overrule the motion for a continuance. 2. Under the facts of the case it was not error to direct a verdict for the plaintiff for the full amount of the principal, interest, and attorney’s fees sued for. 3. This court not being satisfied that the writ of error was prosecuted for the purpose of delay only, the prayer of the defendant in error for the award of damages is denied...
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The defendant was indicted in the superior court of Thomas county for kidnapping, and the indictment contained two counts. The first count was drawn under section 109 of the Penal Code, and charged the defendant and another named person with forcibly abducting and stealing away one Pelham Loyd, without lawful authority or warrant, from Thomas county and conveying him beyond the limits of the count...
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This case is here upon the single assignment of error that the evidence did not authorize the verdict. This court cannot say that there is no evidence which would authorize the verdict. Judgment affirmed. Broyles, O. J., amd Bloodworth, J., concur. ...
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1. The motion for a new trial complains that, over the objection of the defendant, the court admitted the following material evidence of a witness:'“As to who was in the car 1 couldn’t say, my opinion it was Mr. Bray, or some one similar to him, looked like him that night. In the best of my opinion he was the man.” We think this evidence was admissible for what it was worth. Furthermore, the groun...
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The court did not err in admitting the evidence complained of in the special grounds of the motion for a new trial; and, the evidence being sufficient to authorize the verdict, which has the approval of the trial judge, the judgment denying a new trial must be Affirmed. Broyles, G. J., and Bloodwortfh, J., eonew. B. P. Gaillard Jr., for plaintiff in error. B. D. Kenyon, solicitor, contra....
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1. The special ground of the motion for a new trial based upon newly discovered evidence was properly overruled. A part of this evidence was impeaching in its nature; the remainder was cumulative and not of such character as would likely produce a different verdict should a new trial be granted. See Park’s Penal Code, § 1088, and citations under the catchwords “Cumulative,” “Impeaching,” pp. 752-3...
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An indictment was returned against plaintiff in error for an assault with intent to murder C. W. Queen by shooting him with a gun. The evidence of Queen shows that he had been away from home the day that he was shot; that he returned between sundown and dark, took his mule from the buggy, watered him, and, as he was about to enter his lot, was shot. Up to the time of the shooting he had neither se...
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The defendant was charged with murder and was convicted of voluntary manslaughter. Counsel for the plaintiff in error, in their brief and. in their oral argument before this court, admitted that the verdict was authorized by the evidence, and they also expressly abandoned every special assignment of error save that embraced in the 3d ground of the amendment to the motion for a new trial. That grou...
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1. The alleged newly discovered evidence is cumulative and impeaching in its character, and is not such evidence as would probably produce a different result upon another trial of the case. *631Decided April 13, 1921. Indictment for possessing liquor; from Randolph superior court — Judge Worrill. November 29, 1920. Charles W. Worrill, for plaintiff in error. B. T. Castellow, solicitor-general, B. ...
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The plaintiff in error filed an extraordinary motion for a new trial, alleging, in part, that on June 14, 1920, he was tried and convicted of a misdemeanor; that during the same term of the court he filed a motion for a new trial on the general grounds; that on November 5 his motion for a new trial was dismissed; that “ the reason that he did not prepare and file a *632brief of evidence in said ca...
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This case is here for review upon the sole assignment of error that the evidence does not authorize the verdict. The evidence is abundant to show the guilt of the defendant of the crime with which he was charged. It was not error to overrule the motion for a new trial. Judgment affirmed» Broyles, O. J., and Bloodworth, J., concur. ...
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Only the 3d headnóte needs elaboration. It is contended by counsel for the plaintiff in error that,- under the ruling in Lovejoy v. State, 82 Ga. 87(2) (8 S. E. 66), the charge set forth in the 3d headnote was reversible error. We cannot agree with this contention. In the Lovejoy case the judge, after charging upon the defendant’s statement in the language of the code, added the following: “ I fur...
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This case is here for review upon the ground that the evidence does not authorize the verdict. Upon conflicting evidence the jury convicted the defendant, Anderson, of having in his possession a pistol, not at his home or place of business, within the meaning of the statute (Park’s Ann. Penal Code, § 348(a)), without first having procured a license from the ordinary. There being evidence to suppor...
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1. “ The venue can be established by circumstantial as well as direct evidence. Dumas v. State, 62 Ga. 59(4). Evidence as to the venue, though slight, is sufficient where there is no conflicting evidence. Johnson v. State, 62 Ga. 300(1), 301; Porter v. State, 76 Ga. 658(2), 660.” Towler v. State, 24 Ga. App. 167, (2-3) (100 S. E. 42). Under the above rulings the evi*636dence as to the venue in thi...
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1. This court cannot say that the trial judge erred in overruling those grounds of the motion for a new trial which relate to alleged newly discovered evidence, since the record contains no affidavit of the movant and his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence. Civil C...
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The motion for a new trial being based upon the general grounds only, and there being some evidence to authorize the verdict, which has the approval of the trial judge, this court is without power to interfere. Judgment affirmed. Broyles, O. J., and Bloodworth, J., concur. Indictment for carrying pistol; from Douglas superior court — — Judge Irwin. December 30, 1920. Astor Merritt, for plainti...
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The bill of exceptions and the record in this case show that the motion for a new trial was overruled on the 25th day of September-; the certificate to the bill of exceptions is dated October 23, 1920, and the bill of exceptions shows that it was tendered on that date to the judge who tried the case. This being a criminal case and the bill of exceptions having been tendered more than 20 days from ...
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1. When any apparatus for the manufacturing of whisky is found upon a person’s premises, that fact in itself is prima facie evidence that the person in actual possession of the premises had knowledge that the apparatus was upon the premises. Ga. L. Ex. Sess. 1917, p. 18. Under this ruling it was not error for the court In the instant case to refuse to charge the jury as follows: “Before you would ...
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The defendant was convicted of the offense of assault with intent to murder. The evidence authorized the jury to believe that the defendant, while drunk, struck the prosecutor on the head and told her that he was going to kill her, and that as she was leaving his premises he fired at her twice in rapid succession with a pistol loaded with cartridges, and that the balls in the cartridges passed clo...
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None of the headnotes in this case require elaboration except the first. The accusation was drawn under section 22 (page 18) of the act passed by the General Assembly of Georgia at its extraordinary session held in 1917, and charged that the accused “ did knowingly permit and allow one, whose name is unknown to prosecutor, to locate on his premises in possession an apparatus for the distilling and...
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This ease comes to this court upon two separate bills of exceptions, the first assigning error upon the judgment overruling the motion for a new trial, and the second assigning error upon the judgment overruling the motion to set aside the verdict and judgment. While the bills of exceptions, complain of different judgments, both writs of error grow out of the same accusation and the same convictio...
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1. The charge of which complaint is made in ground 1 of the amendment to the motion for a new trial contains an abstractly oorrect principle of law, and “ a charge which is abstractly correct is not rendered erroneous by a failure to charge some other legal principle applicable to the case.” Gunn v. State, 23 Ga. App. 545(3) (99 S. E. 62), and cases cited; Atlanta & West Point R. Co. v. Miller, 23...
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1. The amendment to the motion for a new trial is as follows: “ Because upon the trial of said case the court erred in the following point and particular: What happened is as follows: After the witness for the defendant had been examined and cross-examined by the solicitor of said court, the solicitor having excused the witnesses, the judge then, at the conclusion of the evidence of each of the sa...
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The defendant was charged with murder and convicted of involuntary manslaughter in the commission of an un*650lawful act. The evidence authorized a finding that the defendant was unlawfully pointing a rifle at the deceased when it accidently fired, killing the deceased. The defendant’s sole defense was that the killing was accidental, and in his statement he said he did not know the gun was loaded...
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The defendant was indicted for larceny of an automobile, and upon conflicting evidence was convicted. The verdict having the approval of the trial judge, and there being no error of law .that would require a new trial, the judgment overruling the motion for a new trial must be Affirmed. Broyles, O. J., and Bloodworth, J., concur. In the motion for a new trial it is alleged that this is erroneous...
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1. “ Every defendant has the right to be tried upon an indictment or accusation perfect in form and substance, but this right, like every other (even the right of trial itself) may be waived. One who waives his right to be tried upon an indictment perfect in form as well as substance, and takes his chances of acquittal, will not be heard, after conviction, to urge defects in the indictment, unless...
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1. There being some evidence that ■would have authorized the jury to find that a conspiracy existed between the defendant and his half-brother to take the life of the deceased, and that both of them shot *653at the deceased about the same time, and that one of them killed him, it was not error for the court to refuse to charge: “ In order to convict the defendant of the offense of murder or volunt...
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dissenting. The exact question ruled upon in this case being new in this State, and there being numerous decisions of the English and American courts in seeming harmony with the view entertained and expressed by the majority of the court, I shall give the reasons for my dissent from that view. The ruling announced by the court is based squarely upon the cases cited in the opinion. It is also true ...
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1. The owner of certain real estate wrote to a broker that he would sell the property for a certain sum net to him (the owner), and the broker procured a purchaser who was able, willing, and ready to buy at a price in excess of the amount named, but the owner refused to sell. Held, that the terms of the agreement on the part of the owner did not import an offer on his part to pay the broker the ex...
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Charlie McCarthy brought his action for damages *666against Gulf Kefining Company, C. F. McKinney, and W. F. Hall. The presiding judge dismissed plaintiff’s petition as amended on demurrer, and the judgment sustaining this demurrer is here for review. In so far as the actual occurrence of the injury is concerned, the petition substantially alleged: that the Gulf Kefining Company, a dealer in illum...
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This was suit upon a contract for the agreed price of certain goods alleged to have been shipped by the plaintiff from Paducah, Kentucky, to C. B. Aaron at Aaron, Georgia — a iron-agency prepaid station on the Midland Railroad. > The undisputed evidence showed that the goods were never received by Aaron, but the plaintiff showed that they were delivered to the carrier at Paducah, Kentucky. Ordi...
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1. “Where an application is made, by one accused of crime, for a change of venue on the ground that an impartial jury can not be obtained, the law devolves on the trial judge the duty and responsibility of making an examination and informing himself of the truth of the averments in the application; and where, after hearing evidence, the trial court is satisfied that a fair and impartial jury may b...
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Where a defendant is charged in two accusations with the offense of simple larceny, pleads guilty to both charges, and is sentenced to the chain-gang for each offense, he cannot in one bill of exceptions bring to this court for review the question of whether or not the trial judge erred in overruling his single motion to withdraw his two pleas of guilty. There being no provision of law for such pr...
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While there is no substantial merit in the special grounds of the motion for a new trial, the circumstances in this case relied upon by the State to corroborate the testimony of the accomplice, as to the defendant’s participation in the burglary, were insufficient to warrant a verdict of guilty; and therefore the judgment denying a new trial must be reversed. Judgment reversed. Broyles, O. J., ...
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The motion for a new trial contains only the usual general grounds; there was some slight evidence which authorized the defendant’s conviction; and, the finding of the jury having heen approved by the trial judge, this court is without authority to interfere. Judgment affirmed. Bloodworth, J., concurs. ...
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(After stating the foregoing facts.) In our opinion the plaintiff failed to sustain the allegations of the petition so far as the alleged negligence of the Director-General of Eailroads was concerned, either separately or concurrently with that of the *692eodefendant, the Eeed Oil Company, and therefore the judgment awarding a nonsuit as to the Director-General was correct. The evidence failed to ...
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This case is controlled by the principles announced in Butler v. State, 17 Ga. App. 522 (87 S. E. 812), and the cases therein cited. Eliminating from this case the testimony of the accomplice, there is left no evidence to connect the accused with the perpetration of the offense and leading to the inference of his guilt. The court erred in overruling the motion for a new trial. Judgment reversed. ...
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In a suit in trover to recover an automobile and certain parts which the plaintiff had delivered to the defendant for the purpose of being sold for the plaintiff by the defendant, where the evidence authorized the inference that a sale of the automobile, which the defendant had made under such authority, had been rescinded by the defendant and the purchaser, with the consent of the plaintiff, and ...
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1. Where there is a sale and. conveyance of land by the tract, described in the conveyance as containing so many acres, with the qualifying words “more or less,” the purchaser may defend against a suit for the purchase-money and obtain an apportionment in the purchase-price, upon proof of a deficiency in the number of acres, and that there was such a deficiency as to justify the inference that the...
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1. Where a State or county officer charges an item of costs, he must always show authority of the law so to do; and in a legal proceeding against him for the recovery of an alleged illegal charge (as well as in a proceeding by him to enforce collection), the burden rests upon him to show that the charge is “ expressly and specifically provided for by statute.” Stamper v. State, 11 Ga. 643, 645; Le...
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1. Where a railway or street-railway company is sued for damages on account of a homicide shown to have, been caused by the running of its cars, the defendant will be presumed to have been negligent as charged in the petition, and liable in damages; but this presumption is rebuttable, and there can be no recovery when it is made to appear that the company exercised all ordinary and reasonable care...
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(After stating the foregoing facts.) The language of the contract, fixing the price of turpentine according to its quoted value on the tenth day after notice to furnish tank cars had been given, must, in our opinion, not only be taken as the measure of damages for any negligent failure to promptly furnish the fears, but must also be taken and construed as an agreement fixing the price of the turpe...
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1. “A traveler on tlie public highway, exercising due care, although he knows there is some danger in driving over a defective bridge, may recover for injuries thus sustained, unless the danger is obviously of such a character that driving over the bridge, in and of itself, amounts to a want of ordinary care.” Elbert County v. Threlkeld, 145 Ga. 133 (88 S. E. 683). The charge of the court, having ...
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1. This was a proceeding under a distress warrant. The landlord claimed that the amount due under the rent contract was 1,000 pounds of lint cotton, and that its value was 32% cents a pound at the time it became diue. The tenant claimed that the agreed rental was $225 in money. The tenant testified that he tendered the $225 in cash to the landlord before the issuance of the distress warrant. The l...
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This is a suit for the value of a cow, which died while in the hands of the defendant carrier. In support of its special plea, the carrier sought to overcome the presumption of liability against it by showing, from circumstantial evidence, that the cow must have died on account of injuries inflicted by another animal belonging to the plaintiff and shipped in the same car. In our opinion the eviden...
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“ The right to rescind a horse swap exists only by virtue of such special terms of the contract of sale as may so authorize, or, in the absence of any such agreement, by reason of knowingly false and fraudulent misrepresentations of existing facts, made to the complaining party, whereby he was induced to act to his injury.” Barnett v. Speir, 93 Ga. 762; Sewkirk v. Burts, 25 Ga. App. 689 (104 S. E....
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1. Where a defendant in attachment moves to dismiss the attachment proceeding, upon the ground that the bond given by the plaintiff is void, he must specifically point out its defects. English v. Reed, 97 Ga. 477, 478 (25 S. E. 325). The record in the instant case fails to set forth any specific ground of objection to the bond. The grounds urged in the lower court were as follows: (1) “because the...
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Where, in a proceeding under a dispossessory warrant, the defendant has made the counter-affidavit and given the bond required by law, and a suit for a general judgment against him and his bondsmen thus becomes pending, the plaintiff is entitled to the cumulative remedy of garnishment as provided by the code. Furthermore, any proper proceeding to dismiss or dissolve a garnishment must be taken in ...
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1. Where a forthcoming bond is given in a legal proceeding wherein the plaintiffs are a partnership, the fact that the bond may erroneously recite that the plaintiff is an .individual will not authorize the individual to bring suit on- the bond, since the previous legal proceeding would afford no actual basis for the giving of such a bond. *708Decided April 14, 1921. 2. Where, in a mortgage-forecl...
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On a former writ of error (24 Ga. App. 404, 106 S. E. 794), the law of this case was fixed and determined. Those portions of the charge of the court on the subsequent trial which now are complained of cannot, therefore, be adjudged to be erroneous statements of legal principles; and, under the same and additional evidence submitted at the second trial, such instructions cannot be held inapplicable...
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1. Where an affidavit made as the basis of a third party’s claim of title to property levied on under an execution states that the deponent is the attorney at law of a certain named party, and describes the property levied on, reciting the name of the plaintiff and the defendant in fi. fa., and states that the property is not the property of the defendant in fi. fa., but fails to allege that it is...
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(After stating the foregoing facts.) We are somewhat-puzzled to understand why the jury found the verdict. The evidence indisputably demanded a verdict for the plaintiff. Counsel' for the defendant in error, in his brief, states as the only reason for the verdict that “the plaintiff had not proved any definite amount of cotton or corn that had been raised or produced by the defendant, and left the...
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The defendant bought from the plaintiff a cash-register on express warranty that it would give certain definite results. He made a cash payment and gave his notes for the balance of the purchase-price. On receipt of the register it was found to be defective in its physical construction, and would not perform the particular kind of work demanded by the defendant and which at the time of the purchas...
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(After stating the foregoing facts.) Counsel for the plaintiffs and the defendant differ as to the grounds. upon which the nonsuit was based, counsel for the plaintiffs insisting that the only ground upon which the motion for a nonsuit was made and the only ground that was considered by the court was that the contract sued upon was unilateral, and counsel for the defendant insisting that it was al...
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This is the second time this case has been before this *720court. The case was decided by this court on December 16, 1919. See 24 Ga. App. 628 (101 S. E. 715). The judge of the city court of Nashville at the next term of that court and at each succeeding term was disqualified. On August 13, 1930, at the August term of that court, when a qualified judge, to wit, the judge of the city court of Dougl...
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The plaintiff obtained a verdict against the street-railway company for damages because of its alleged negligence? in a collision of a car of the street-railway with the plaintiff’s automobile at a place where a public highway crossed the street-car track; the defendant’s motion for a new trial was overruled, and the movant excepted. The collision occurred in the town of Hapeville, and the neglige...
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Suit in a justice’s court was brought upon a promissory note for the principal sum of $55, and during the trial in that court the defendant’s attorney entered a credit of $10 on the note, and judgment was thereupon rendered for the plaintiff for $45 principal, besides interest; and within the time allowed by law the defendant filed an appeal to the superior court. When the case was called in the s...
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Where a petition for the writ of certiorari is based solely on the allegation that the finding of the trial court was unsupported by any evidence, and the finding is sustained on review by the judge of the superior court, and the certiorari overruled, no question for decision by this court is presented if there is some evidence to support the finding of the trial court. Judgment affirmed. Jenhi...
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Where an injury occurred to an employee of the Central of Georgia Railway Company prior to the date of the proclamation of the President of the United States and of the act of Congress of March 21, 1918, placing the railroads of the country in the hands of a director-general for operation, and subsequently the injured employee, while the Central of Georgia Railway Company, in pursuance of the term...
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(After stating the foregoing facts.) The petition in this case is based upon a notice given by the plaintiff to the City of Atlanta as required by § 910 of the Civil Code of 1910. This notice, after stating that at a certain time and during a very hard rain the plaintiff's " place of business was overflowed and the water ran in the basement of [the plaintiff's] building,'' and damaged the goods st...
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1. Where, in eviction proceedings against a tenant under sections 5385-9 of the Civil Code (1910), the tenant files a counter-affidavit and bond, “ he may be charged with double rent for the time *738lie held over, up to the date of the trial, although nothing is said of rent in the plaintiff’s affidavit to obtain the warrant. The statute annexes this incident to a wrongful holding over.” Pettis v...
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The petition contained the following allegations : The plaintiff was engaged in unloading automobiles from a freight-car standing on the side-track beside a platform. The front wheels of an automobile were resting upon the platform, and the rear wheels inside the freight-car. In order to get the automobile from the car, it was necessary to tilt the rear wheels from the side of the door. While the ...
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This court, in Render v. Harris, 25 Ga. App. 302 (103 S. E. 179), determined the law of this case by holding that the court did not err in overruling the demurrer to the petition as amended. The evidence is in substantial accord with the allegations made by the petition, and the judgment overruling the defendant’s motion for new trial is Affirmed. Stephens and Hill, JJ., concur. ...
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T. Tlie lessee of a building in which he conducts a hotel and operates an elevator for the transportation of his guests to and from different floors of the building is required, in the operation of the elevator for this purpose, to exercise extraordinary diligence for the safety of the guests while they are getting on and off and are riding upon the elevator. This rule of diligence is not limited ...
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While judgment against the sureties on a bond to dissolve an injunction and receivership cannot be entered in the main case, where the bond is conditioned otherwise than for the eventual condemnation money (Jordan v. Callaway, 138 Ga. 209, 75 S. E. 101), yet, where, as in this case, the obligation of the bond was conditioned to pay unto the plaintiff whatever sum may be shown to be due him under t...
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1. “ The general rule, in the absence of a different agree-. ment, is that a real-estate broker, in whose hands property is placed for sale, earns his commissions when, during the agency, he finds a purchaser ready, willing, and able to buy, and who offers to buy on the terms stipulated by the owner.” Civil Code (1910), § 3587; Smith v. Tatum, 140 Ga. 719 (79 S. E. 775); Odell v. Dozier, 104 Ga. 2...
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1. While the act of Congress of March 4, 1915, Known as the “ Cummins amendment,” provides that the initial' carrier shall not, by reason of any agreement as to value, in its receipt or otherwise, be permitted to escape liability for “ the full actual loss ” to the shipment (U. S. Comp. Stat. 1918, § 8604 (a), p. 1373), and while the damages are to be measured on the basis of value at the time whe...
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In her action for injuries resulting from having been run over by the defendant’s truck, the plaintiff claimed damages for pain and suffering, and also damages' for the destruction of her watch, clothing, and other articles upon her person at the time she was injured. The damage to her property, as well as the amount of such damage, was undisputed. Her evidence as to severe personal injuries from ...
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1. In a proceeding under the prohibition act, for the condemnation of an automobile engaged in the transportation of liquor, the sale or possession of which is prohibited by law, it was error for the court to refuse to admit in evidence the written transfer by the vendor to the plaintiff in error of the purchase-money note reserving title to the machine unless such evidence of title were accompani...
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One of the stipulations contained in the- contract of shipment is that the carrier can not be held liable for any injury inflicted upon live-stock transported, unless suit therefor be brought within six months after the right of action has accrued. The record fails to disclose any act or conduct on the part of the carrier which would obviate the necessity of a compliance by the shipper with this p...
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The ordinary, the sheriff, and the clerk of the superior court of Cobb county made a contract with two newspaper corporations located in the county, to publish the legal or official advertisements for the county for a term of four years, beginning in January, 1917. By the terms of the contract each one of the newspapers was designated as the official organ for the county for a term of two years, a...
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Suit by attachment was instituted on two promissory notes given by the defendant for the purchase-price of certain machinery. In the declaration judgment was asked for principal, interest, and attorney’s fees. The defendant demurred to that portion in which attorney’s fees were claimed. ' In a special plea the defendant admitted the execution of the notes and that the plaintiff was the holder, iM ...
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1. If, pending a tenancy, the landlord directly or indirectly resumes possession of the premises, by acts amounting to an actual or constructive eviction of the tenant, or if the tenant becomes dissatisfied and offers to surrender possession to the landlord, and the landlord thereafter resumes possession, or exerts a control over the premises inconsistent with the tenant’s right of occupation, he ...
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1. The bill of exceptions was not subject to dismissal for any of the reasons assigned. The assignments of error were sufficient to give this court jurisdiction. Lyndon v. Ga. Ry. & El. Co., 129 Ga. 354(4) (58 S. E. 1047) ; Mock v. Waters, 6 Ga. App. 608(1) (65 S. E. 579) ; Tinsley v. Gullett Gin Co., 21 Ga. App. 512(1) (94 S. E. 892). 2. The answer as amended did not allege facts which would lega...
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(After stating the foregoing facts.) We have given the record in this case, in connection with the very exhaustive briefs of counsel, careful study and consideration, and have come to the conclusion that none of the assignments of error contained in the motion for a new trial are meritorious, except the one to which we shall specifically refer hereafter. Without elaboration, and contenting ourselv...
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1. The rule relating to sequestration of witnesses does not apply when the witness is a party, although there may be several parties on one side and all are intended to be introduced as witnesses, as all have the right to remain in court during the entire trial. Georgia R. Co. v. Tice, 124 Ga. 464(3) (52 S. E. 916, 4 Ann. Cas. 200). 2. Where letters which would be admissible in evidence are lost o...
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1. A petition was filed in the superior court of Fulton county on September 18, 1918, against the Peachtree Soda Company, alleging it to be a corporation having an office, agent, and place of business in that county. On September 27, 1918, the plaintiff filed in the same court a petition against the Confectioneries Corporation, alleging that it is a corporation having an office, *780agent, and pla...
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Under the Civil Code (1910), § 4424, which provides that “ a mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, upon whom she or he is dependent, or who contributes to his or her support,” the right to bring the action is primarily in the mother, and the father has no right of action if the mother is in life when the homicide occurs. Therefore, when a ...
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1. To entitle a party to a continuance under § 5717 of the Code of 1910, which provides: “If either party shall be providentially prevented from attending at the trial of any cause, and the counsel of such absent party will state in his place that he cannot go safely to trial without the presence of such absent party, such cause shall be continued, provided his continuances are not exhausted,” evi...
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1. The writ of certiorari does not lie to correct a judgment of an inferior judiciatory until after a final determination of the cause. A judgment of an inferior judiciatory overruling a demurrer to a petition not being a final determination of the cause, the writ of certiorari does not lie to review such judgment where the cause is still pending in the trial court and before it has been finally d...
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The undisputed evidence showing that the plaintiff was the bona fide holder, for value and before maturity, of the promissory note sued on, and, the verdict'for attorney’s fees being supported by the evidence, the motion for new trial was properly overruled. No error of law appears. Judgment affirmed. Jenkins, P. J., and Stephens, J., concur. ...
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(After stating the foregoing facts.) The evidence in the case was hardly sufficient to demand a verdict for the plaintiff, but it was sufficient to raise the inference that, as to the cottonseed business for that year, there was a partnership between the two defendants. The first letter written by W. C. Mason, one of the defendants, in reply to a letter of the plaintiff, asking that it be favored ...
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When this case was previously here for review this court held: “ The defendant’s conviction of voluntary manslaughter was unauthorized by the evidence, and the court erred in refusing to grant a new trial.” 24 Ga. App. 310. The evidence in the instant case is the same as that reported when the case was formerly here. It necessarily follows that it was error, as assigned, to charge upon the law of ...
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In the city court of Bichmond county Nick Antonopoulas pleaded guilty to an accusation in which he was charged with a violation of- the prohibition laws of the State, and was sentenced to pay a fine of $800 and to work on the chain-gang for twelve months. The order provides that if the fine be paid immediately the sentence to work on the chain-gang “ will be suspended and the defendant paroled and...
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1. The ground of the motion for a new trial which complains that the court erred in ruling out the following testimony of the plaintiff, to wit, “I did take Mr. Heel out there hut — ,” should not be considered by this court, because the ground is not complete and understandable without reference to another portion of the brief of evidence. Cœsar v. State, 22 Ga. App. 796 (97 S. E. 255), and cases ...
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(After stating the foregoing facts.) The first question to be determined in this case is, was Holliday an accommodation indorser, a surety? If he was, the second question is, was he liable to the bank on the instrument sued upon in its changed *794condition? That Holliday was merely an accomodation indorser, a surety, is borne out by the record, and is practically conceded by both parties to the s...
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(After stating the foregoing facts.) 1. Although the note reserving title to the automobile was not recorded until after the work done by the mechanics, and the record thereof was not notice to them, yet there was evidence that before they did the repair work they had actual notice of the reservation of title. This being true, the judge did not err in charging the jury as follows : “The real issue...
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This case arose by reason of a suit to recover damages from a father for personal injuries alleged to have been caused by the negligent driving of an automobile by a son under sixteen years of age, who was alleged to have been acting as the agent of his father in the prosecution of and within the scope of the parent’s business. The plaintiff recovered damages, and, because of the overruling of the...
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