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All Reporters → se → Volume 105

Opinions in se Volume 105

WALKER, J., concurring in result. This was an action of ejectment, tried at the Spring Term, 1920, of STOKES, before McElroy, J., and a jury. The action was brought against Patsy Smith and Susan Smith, who answered alleging that they were holding the land in controversy under and as tenants of John R. Smith, who came in and being made party defendant, filed his answer alleging that at the time he ...
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This cause was finally determined by this Court, Fall Term, 1919, and is reported 178 N.C. 548. Upon the coming down of the opinion, the defendant tendered a judgment, which the court refused to sign. The court rendered the following judgment: Upon consideration of the certificate of the Supreme Court filed herein, it is therefore ordered that the former judgment be, and it is, affirmed, as to Woo...
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This is an indictment charging the defendant with the sale of intoxicating liquor. The defendant was convicted and sentenced to work on the roads of Richmond County for twelve months, and appealed. There was direct evidence of a sale of intoxicating liquor, as charged in the indictment. The State was permitted to offer evidence in corroboration tending to prove that crowds assembled in and about t...
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It appears that on 9 February, 1917, John A. Scott and wife executed to Susan Ida Starling a deed for certain lands to said *Page 441 Susan Ida Starling "for life, and after her death to the heirs of her body in fee, to their only use and behoof." The question presented is, Does the grantee take a fee simple under the rule in Shelley's case? This language appears in the introductory or titular pa...
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This is a motion to set aside a judgment for excusable neglect. The original motion was also based on another ground, it being that the judgment was irregularly taken, having been rendered contrary to the course and practice of the court, but the judge finds as a fact that at the hearing the only ground alleged was excusable neglect. He found the facts and refused to set aside the judgment. The ac...
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From the pertinent facts so presented it appears that J. M. Goode died in Mecklenburg County on 10 December, 1918, having duly executed his last will and testament, disposing of his realty, a valuable house and lot in the city of Charlotte, and also his personal estate, and leaving him surviving three children, to wit, George Goode, intermarried with Mamie W. Goode, coplaintiff, and Agnes Goode He...
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The action is to recover the purchase price of municipal bonds of the city of Hendersonville to the amount of $62,000, sold or contracted to defendant company by plaintiff at a stipulated sum on 18 September, 1920, and purporting to have been issued under the Municipal Finance Act, Consolidated Statutes, ch. 56, subch. 111. Defendant refuses acceptance and payment on the alleged ground that the sa...
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This is an action to recover the balance due on certain promissory notes. The defendant filed answer admitting the execution of the notes, but alleging that certain property of defendant embraced in a deed of trust securing said notes, had been sold under the deed of trust and bought by plaintiff at a grossly inadequate price, and asking, therefore, that the sale to plaintiff by the trustee be set...
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CLARK, C. J., concurring in part; ALLEN, J., dissenting; WALKER, J., concurring in the dissenting opinion. The judge made an allowance to the plaintiff for subsistence of $200 on 1 April, 1920, upon due notice. No exception was taken to this allowance, and it was paid in full by the defendant. The case was then continued for further hearing until 11 May, 1920, to be heard at the courthouse in Went...
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CLARK, C. J., dissenting. This is an action to recover damages by the plaintiff for injuries sustained by him in consequence of the alleged negligence of the defendant. The defendant denies negligence, and pleads contributory negligence. In the southern part of the town of Reidsville the defendant had and maintained, at the date in question, three tracks only a few feet apart, all of which are par...
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This is an action to recover damages for wrongful death caused, as alleged, by the negligence of the defendants, the Seaboard Air Line Railway Company, and Hines, Director General. The plaintiff was appointed administrator in Richmond County, where the intestate lived; the death occurred in Anson County, and this action was instituted in Union County. The defendants moved that the action be remove...
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The plaintiff alleged in her complaint that she had gone from her home in Greensboro, N.C. to Rochester, Minn., to place herself under the care and medical treatment of the Mayo Brothers, celebrated physicians *Page 408 and surgeons of that place, and that after receiving treatment and leaving the hospital, she started on her return to her home by way of Cincinnati, Ohio, where she applied to the...
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At March Term, 1918, there was an action pending in the Superior Court of Randolph brought by Mattie L. Morris against her husband, J. B. Morris, the plaintiff in this case, asking for a divorce from bed and board, and to be allowed to live separate and apart from her husband. At that term a consent judgment was entered, and signed by Jones, J., reciting that the jury had been impaneled, and both ...
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This is an appeal from an order made in the cause reported 179 N.C. 19, rehearing p. 331. It was decided in that case that the defendant is a public-service corporation, enjoying the right of eminent domain in North Carolina, and that it may be compelled to furnish the electric current to the plaintiff and other customers without unjust discrimination. It has been further held that a mandamus lies...
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The opinion of the Court was delivered by On the 20th day of November, 1844, Lewis Manker executed a certain trust deed to Henry Smart and James Walker, trustees, in which he conveyed to said trustees, for the sole and separate use of certain of his daughters, certain personal property and real estate. The clause conveying the property for his daughter, Julia E. Manker, who afterward married Th...
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November 26, 1920. The opinion of the Court was delivered by On October 2, 1919, an election was duly held in the town of Summerville at which the following questions were submitted to the voters: "(1) Shall the town of Summerville purchase, repair, and extend the electric lighting plant now existing in said town? (2) Shall the town of Summerville issue its coupon bonds, according to law, not exce...
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1. This was a proceeding by a landlord to dispossess his tenant, upon the ground that there was a tenancy at will and that the tenant had, by the landlord, been given sixty-days’ notice, as required by the statute, of an intention on the part of the landlord to terminate the tenancy. The sole question for our determination is whether or not the tenant, when the landlord sought to dispossess him, h...
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1. “ While the municipal court of Atlanta has jurisdiction of suits involving larger amounts than those formerly within the jurisdiction of the justice’s courts, the procedure in the municipal court of Atlanta, so far as the necessity for pleadings is concerned, does not differ from that of the justice’s courts.” Walker v. Cliff Drug Co., 23 Ga. App. 722 (2) (99 S. E. 392). The demurrer to the pet...
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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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As the only grounds of the motion for a new trial in this case are those which complain of the verdict, and as there is evidence sufficient to support the verdict, which has the approval of the presiding- judge, the verdict must stand. Judgment affirmed. Broyles, C. J., and Luke, J., concur. ...
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1. The first ground of the original motion for a new trial, not having been argued in the brief of counsel for the plaintiff in error, will be treated as abandoned. 2. The remaining grounds of the motion for a new trial are the general grounds “with variations,” and exceptions to an excerpt from the charge, and to the failure of the judge to charge a certain proposition. When the entire charge is ...
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1. The accusation charged, in substance, that the accused had, controlled, and possessed intoxicating liquors or beverages; ' and in the excerpt from the charge of the court to which exception is taken the jury were instructed, in substance, that if they found, from the evidence, that the defendant had, controlled, or possessed intoxicating liquors or beverages in the county on the date alleged in...
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In accordance with the rules of law governing this case, as set forth by the Supreme Court in response to questions certified to it by this court (Watson v. Burnley, 150 Ga. 460, 104 S. E. 220), the judgment of the court below overruling the demurrer .to the petition is Affirmed. Jenkins, P. J., and Stephens, J., concur. Sam. L. Olive, J. Glenn Stovall, for plaintiff in error. J. B. Burnside, co...
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Only the first headnote needs elaboration. One of the grounds of the motion for a new trial alleges that the judge erred in charging the jury as follows: “The defendant sets up in this case what the law denominates as a plea of alibi. An alibi, under the laws of the State of Georgia, is the impossibility of the defendant’s presence at the time and place of the alleged *741offense; and if tbe range...
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1. An instrument which recites that it is given to secure a debt, and which by its terms purports to convey the absolute and unconditional title to property, will, in the absence of a defeasance clause, be construed as a deed and not as a mortgage, although it confers upon the grantee the right or option, upon default by the debtor, to appoint a trustee with power to sell the property and pay the ...
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(After stating the foregoing facts.) Under the rules of the common law a party or person interested in the litigation was incompetent to testify in his own interest. In removing this disqualification the law as now embodied in section 5858 of the Civil Code (1910) still retains by way of exceptions certain limited and specified portions of the former general inhibition, one of which, as abridged, ...
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1. An offer to purchase which contemplates acceptance by shipment of the goods affords the basis of a binding contract only when the proposal is accepted during the time in which it remains outstanding. Sheffield v. Whitfield, 6 Ga. App. 762 (2), (65 S. E. 807); Sivell v. Hogan, 119 Ga. 167, 172 (46 S. E. 67). In this case the jury were authorized to find, from the evidence, that the defendant’s o...
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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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(After stating the foregoing facts.) Motions for new trials on extraordinary grounds are not favored by the courts, 'and “ a stricter rule is applied to an extraordinary motion *754for new trial based on the ground of newly discovered evidence than to an ordinary motion on that ground.” Norman v. Goode, 121 Ga. 449, 455 (49 S.E. 268). Even in an ordinary motion for a new trial based upon newly dis...
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1. There is no merit in either of the grounds to dismiss the bill of exceptions, and the motion is denied. 2. “ When the plaintiff relies on title to recover possession of personal property wrongfully withheld from him, he must show a legal title; a mere equitable title will not suffice. When, therefore, it appears that the legal right of action is not in the plaintiff, he has no right of action a...
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1. Any person indicted for an offense not affecting his life may demand, as a matter of right, a trial at the term when the indictment is found, or at the next term thereafter (Penal Code of 1910, § 983; Dublin v. State, 126 Ga. 580, 55 S.E. 487); and it is the duty of the judge to have the demand placed upon the minutes of the court, provided that a jury qualified to try the defendant is impanele...
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1. The description of the stolen property was legally sufficient in an indictment for simple larceny in which the property was described as “ one red and black spotted sow hog of value $10, one white and black spotted sow hog of value $10, one red and black spotted male hog of value of $10, one dark red male hog of value $10, and two white and black spotted sow hogs of value of $10 each; all of th...
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It appearing that the bill of exceptions in this case was not tendered the judge within twenty days of the date of the judgment overruling the defendant’s motion for a new trial, the writ of error must be Dismissed. Luke and Bloodworth, JJ., concur. Conviction of manslaughter; from Washington superior court — Judge Hardeman. June 8, 1920. Rawlings & Wood, for plaintiff in error. Walter F. Grey, so...
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The charge of the court fully and fairly presented, with one exception, the law governing the substantial and controlling issues of the case, including the defendant’s contentions; the error being that the court, in charging upon the subject of assault with intent to murder, stated, in substance, that all the rules applicable in a case *750of murder, except the fact of the killing, apply to a case...
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1. None of the grounds of the amendment to the motion for a new trial points out any error which would require this court to grant a new trial. 2. There is some evidence to support the verdict, which has the approval of the presiding judge, and this court will not interfere. Judgment affirmed. Broyles, C.J., and Luke, J., concur. ...
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1. A tort is a legal wrong committed upon the person or property of another, independent of contract. But an action in tort may he maintained for the violation of a duty flowing from relations between the parties created by contract (Payne v. Watters, 9 Ga. App. 265 (70 S. E. 1114); Fam v. Wilkerson, 22 Ga. App. 193 (95 S. E. 752), or on account of wilful misrepresentation of a material fact, made...
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(After stating the foregoing facts.) 1. The petition in this case does not allege wantonness on the defendant’s part. If, therefore, as claimed in the several grounds of the demurrer, the original petition should be construed as an action to recover damages arising from mere negligence causing fright, shock, and mental suffering, but which was neither attended with physical injury nor followed by ...
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delivered the opinion of the court. This is an appeal by the Southern, Railway Company from an order of the State Corporation Commission locating a new station at North Garden, in the county of Albemarle. The Southern Railway Company (hereinafter to be referred to as the railway company) has maintained a station at the above point for a period much in excess of five years. This station, due to an ...
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delivered the opinion of the court. The plaintiff in error in this court was the plaintiff in the trial court, and the defendant in error was the defendant. Hereinafter they will be respectively referred to as the plaintiff and the defendant. The record in the case is a very brief one, and the question presented for review in this court is the ruling of the circuit court of the co/unty of Giles up...
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after making the foregoing statement, delivered the following opinion of the court: ■ • The material questions raised by the. assignments of error will be disposed of in their order as stated below. 1. Is the plaintiff’s action barred under the statute of limitations requiring it to be instituted within one year after the injury complained of occurred? In our opinion this question must be answered...
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delivered the opinion of the court. This suit was instituted in the Circuit Court of Giles county by the town of Narrows, for the purpose of having an accounting and a decree directing the treasurer of the county to pay to the complainant a certain portion of the *577road taxes collected by him of the inhabitants of the town for certain years, and to enjoin him from paying out the amounts as colle...
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delivered the opinion of the court. Emmanuel Hoover died intestate in 1918, leaving surviving him his -widow, five adult children, and two grandchildren, who were the children of a deceased son, Luther Hoover. There also survived him the appellee, Winnie Hoover, who claims to be the child of Benjamin E. Hoover, who was a son of Emmanuel, and died intestate in 1903. *525Emmanuel left real estate of...
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delivered the opinion of the court. On March 1, 1917, G. W. Austin contracted to furnish all the labor and material and erect a dwelling for Z. T. Watson, in the city of Roanoke, at the price of $3,125, of which $400 was to be paid when the foundation was in, $900 when the roof was on, $1,000 when the plastering was completed, and the balance when the house was finished. Austin contracted with Bru...
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delivered the opinion of the court. The plaintiff’s intestate was employed by the Virginia Iron, Coal and Coke Company to work .in its mines in Wise county. While so employed he was taken sick and died. This action was brought against the company and the doctor employed by it to' attend the miners, on the ground that the doctor had negligently failed to render the necessary medical attention to th...
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delivered the opinion of the court. This is a suit in equity brought by the appellants, W. F. Claybom and others, against the appellee, Camilla Red Ash Coal Company, for an injunction and accounting. The decree appealed from denied the relief sought. The appellants are the owners in fee of a tract of land containing about eight acres, known as the Helton tract, except the coal thereon which belong...
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delivered the opinion of the court. This is an action of trespass on the case by Harvey F. Kidd (plaintiff below) against Clinton DeWitt, Jr. (defendant below), for damages inflicted upon the automobile of the said Kidd by the automobile of the said DeWitt, while the same was in charge of and being driven by the chauffeur of the latter. The pertinent facts necessary for the proper understanding an...
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delivered the opinion of the court. While the arguments of counsel in this case are thorough and complete, most of the questions so ably discussed are well settled, and the crucial questions involved lie within narrow limits. Without- neglecting the consideration of every authority cited and every fair argument based thereon, we shall omit reference to many of them in our effort to escape a critic...
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delivered the opinion of the court. This is an action in assumpsit to recover $1,500, by the White Sewing Machine Company, a corporation, against Gilmore Furniture Company, a corporation, a balance claimed for the purchase price of a carload of 150 sewing machines. The case was tried upon the plea of non-assumpsit and two special pleas. The special pleas alleged false representations and fraud on ...
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after making the foregoing statement, delivered the following opinion of the court: The following questions raised by the assignments of error will be disposed of in their order as stated below: [1] 1. Is the act approved March 4, 1914 (Acts 1914, p. 49, et seq.), commonly called the “cedar rust law,” valid as enacted under the police power of the State for the protection of the public interest, a...
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Proceeding pursuant to section 16 of the Public Service Commission Law, chapter 150 of the Code 1918, petitioners seek a suspension and setting aside of the final order entered by the public service commission on October 11, 1920, in case No. 1091, entitled Ivelly Axe Manufacturing Company and others, petitioners, against United Fuel Gas Company, begun and then pending before said commission, dism...
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This appeal has brought np for review a decree partially dissolving an injunction inhibiting the cutting and removal of the timber on certain lands, which was awarded to the owners of the lands, upon the theory of an abandonment or forfeiture of the timber rights vested in the assignors of the defendants, by a deed dated, July 17, 1912, and extending over a period of ten years from said date. Havi...
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This appeal brings up for review a decree of the circuit court of Mason county establishing a deed made by E. W. Foreman in his lifetime to the plaintiff as valid and binding, and directing that the same be recorded; and setting aside a deed made by said E. W. Foreman to the defendant Maude L. Boush, as- a cloud upon the title of the plaintiff. E. W. Foreman was the father of the plaintiff and the...
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Lee Douglas brought suit in the superior court of Cobb County, against J. P. Brooke. The latter tiled a cross-petition seeking specific performance of a contract for the sale of land. A decree was rendered therein which provided, that, upon the deposit of á stipulated sum of money by Brooke with the clerk of the superior court of said county, Douglas should *651make to Brooke “good and sufficient ...
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The court did. not err in sustaining the general demurrer and dismissing the petition. Judgment affirmed. All the Justices concur. ...
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1. Under an indictment for murder, the accused may be convicted of the offense of shooting, at another, if the latter offense is substantially charged by the averments of the indictment. Watson v. State, 116 Ga. 607 (43 S. E. 32). 2. In the instant case two persons were jointly indicted in one count for the offense of murder. The indictment charged that the accused “ Zack Hillman and Taylor Jackso...
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The special grounds of the motion for a new trial are merely amplifications of the general grounds; and the evidence, while circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt. Judgment affirmed. Luke and Bloodworth, JJ., concur. ...
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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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The petition as amended set out a cause of action against the defendant, and was not subject to general demurrer, either on the ground that, the alleged contract being a parol contract, it was contrary to the statute of frauds and could not be enforced, or on the ground that the cause of action was barred by the statute of limitations. Judgment affirmed. Jenkins, P. J., and Stephens, J., concur...
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The dividing line between the feme plaintiff and the defendant in the partition proceedings of their father’s land in 1885 was “From the poplar (an admitted point) west 190 poles to the top of Griffith ridge.” The defendant contends that the line should be so run without any allowance for the variation of the needle. The plaintiffs contend that owing to the variation of the magnetic needle that...
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In 1892 a land company purchased 100 acres inside Wilkesboro, and had it laid off into blocks, lots, streets, and alleys, and a map was made. At a public sale many lots were sold off by this map, which was on exhibition, and in addition streets were trimmed out and stakes driven up to show the actual location. Among these streets was Main Street, running west from the courthouse, and Cherry and Sp...
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This action is to recover damages for the negligent burning of the plaintiff's residence and furniture. There is no contest as to the plaintiff's title to the property burned, or as to the value thereof. The assignments of error are the refusal of a motion for a nonsuit, and for the refusal of a prayer to instruct the jury as prayed, that "if they believe all the evidence, the defendant at the tim...
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On 24 March, 1915, J. Hudson Williams executed his note and mortgage securing the sum of $2,000 to L. I. Jennings, and afterwards conveyed the land described in the mortgage to J. Manly Lyda, the latter agreeing to assume and pay, as part of the consideration of the deed to him by Williams, the mortgage debt due by Williams to Jennings, both Jennings and Lyda having since died, and being represent...
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"1. Was Fred Pendergrast a registered qualified voter, with a right to vote in the special school election held on the `Edwards' Special-tax District, on 17 May, 1919? Answer: `No." "2. Was W. C. Mitchum a qualified registered voter, with a right to vote in the special election held in `Edwards' Special School-tax District on 17 May, 1919? Answer: `No.' *Page 569 "3. Was J. L. Vickers a qualified...
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Plaintiff sued to recover damages for a personal injury, alleged to have been caused by negligence of the defendant, who was engaged in operating a band sawmill, in the manner described by the witnesses. *Page 574 Plaintiff contended that the evidence tended to show the following facts: The plaintiff, at the time of his injury, was employed by the defendant, and directed by his foreman to aid in ...
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This is an action brought by the sheriff of Avery County against the board of commissioners to recover $20 each for the capture and destruction of illicit distilleries in Avery County, under the provisions of ch. 807, Laws 1909. It is admitted that under the provisions of the act of 1909, the sheriff is entitled to recover. It is claimed, however, that this act is repealed by ch. 188, Public-Lo...
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This is an action to recover $324 alleged to be due by contract. The defendant, a foreign corporation, entered a special appearance, and moved to dismiss upon the ground that H. T. Leslie was not a managing agent of defendant, and upon the hearing of the motion the following facts were found and the following order made: "1. A summons was issued herein on 27 August, 1919, which was served by the s...
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There was evidence on the part of the State permitting the inference that defendant, acting as agent for the Asheville Milling Company, in the early part of 1918, induced a purchase for value of shares of stock in said company at much more than their actual worth by false representations and assurances as to the value of said stock and by statements of existent facts bearing on such value knowingl...
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This is a criminal action, tried upon an indictment charging the unlawful manufacture of intoxicating liquor. STATE'S EVIDENCE. Sheriff M. Allard Case: I know John Blackwell. He lives in the eastern part of Henderson County. I saw him at a blockade still on 3 January, 1920, over at Big Hungary, ten miles from here in this county. Mr. Hill and Mr. Lyda were with me at the time. Blackwell had a comp...
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The evidence tended to prove that the defendant and the deceased were at Connor's store at Terrell, in the county of Catawba, on 29 December, 1919; that no words passed between the defendant and the deceased, according to the State's witness, preceding the shooting. The deceased had a negro boy named Bud Farrar to help crank his automobile. The deceased was leaning over the hood of the machine pul...
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This is an action to recover the possession of land, and to determine the rights of the plaintiff and the defendant therein. Prior to 4 January, 1915, the plaintiff, T. C. Burleson, was the owner of the land, and on that day he and the defendant executed a deed to George W. Burleson and three others, in which the grantors are described as T. C. Burleson and wife, Emily L. Burleson, and reserving t...
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"1. Is the plaintiff estopped by the report of J. M. Carver from claiming that part of said land shown on the court map by the lines 1 to 2, 2 to 3, 3 to 4, 4 to 5, 5 to 6, and 6 to 1? Answer: `No.' "2. Is the plaintiff the owner of the land described in the complaint and shown on the court map by the lines A to B, B to C, C, to D, D to E, and E to A? Answer: `Yes'." From the judgment rendered the...
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The facts deducible from the plaintiff's testimony and the testimony of the plaintiff's witnesses are as follows: Plaintiff, fifteen years of age, was employed by the defendant to work at the defendant's railroad shops at Spencer, N.C. Plaintiff lived in Salisbury, N.C. and was carried to and from his place of employment by the defendant on an employee's train, known as the "shop train," consistin...
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CLARK, C. J., and BROWN, J., dissenting. This is an action to restrain the sale of certain municipal bonds, the plaintiff alleging that the act of the General Assembly authorizing the sale of the bonds is unconstitutional and void. The important and material facts involved in this controversy are: 1. That the city of Goldsboro, being indebted for public improvements, prepared to issue bonds under ...
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CLARK, C. J., dissenting. This is an action to restrain the sale of bonds at less than par, as the defendant was authorized to do by an act of the General Assembly enacted at the Special Session, 1920. There was a judgment in favor of the defendant, and the plaintiff appealed. This appeal is controlled by the decision in Kornegay v. Goldsboro, at this term, and upon that authority the judgment is ...
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This is an indictment for murder. The defendant was convicted of murder in the first degree, and from the judgment upon such conviction appealed to this Court. Spencer McNeill was tried with the defendant, but the jury acquitted him. The deceased was J. E. Zachary, sheriff of Yadkin County, and the killing occurred at an illicit distillery in Yadkin County. The State's evidence tended to show that...
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This is a civil action to settle the title to the land in dispute, the parties agreeing as to the facts of the case. It will suffice to state as briefly as we can their respective contentions, as they will fully disclose the nature of the controversy. On 26 January, 1821, Edmond Hatch devised the land in controversy by his will, which is duly recorded in the clerk's office of Craven County, N.C. I...
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ALLEN, J., concurring in result; WALKER and HOKE, J. J., dissenting. This is an action by the wife against the husband, alleging in her complaint the marriage and their living together as man and wife; that *Page 517 the defendant contracted a venereal disease, and that he "took advantage of his marital relation with said plaintiff and infected her with said vile and loathsome disease," and asks ...
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delivered the opinion of the court. [1, 2] At a judicial sale of the properties of the Empire Coal Land Corporation made September 11, 1916, the Interstate Coal Company,' of which George L. Carter owned all the stock, became the purchaser thereof at the price of four hundred and twenty-five thousand dollars. A large cash *109payment was made, and it gave five notes for the deferred payments of $78...
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after making the foregoing statement, delivered the following opinion of the court: *209The questions raised by the assignments of error and cross-error will be disposed of in their order as stated below. [1] 1. Does the statute under which this proceeding was instituted make sufficient provision for payment of the just compensation which is guaranteed by section fifty-eight of the State Constitut...
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delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of Pulaski county, entered on September 10, 1918, in the chancery cause of Robert L. Gardner, assignee, etc. v. R. P. Harris, et als. This suit has been pending for many years in the court, supra. Originally it was in the name of R. L. Gardner, trustee of G. W. Ould v. R. P. Harris and Carper, Admr. Several am...
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delivered the opinion of the court. [1] The question raised by this record is whether a fund held by the Virginia executors of M. W. Cornett, constituting the proceeds of sale of 200 shares of stock of a national bank located in Missouri, made by the Missouri administrators, and, under the laws of that State, there subjected to a collateral inheritance tax, is also subject in this ¿State to an inh...
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The defendant, Elkins Electric Railway Company, for some reason not apparent, desiring to abandon a part or the whole of its system and remove its tracks from the streets of the city of Elkins, procured leave from the council of that city to do so upon condition that it execute a bond in the penalty of five thousand *352dollars, conditioned to replace the street paving and put the same in as good ...
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To reverse the judgment of conviction for murder in the second degree and confinement in the penitentiary for a period of fifteen years defendant B'. L. Galford prosecutes this writ of error. Besides formal motions for a new trial and in arrest of judgment, he assigns • as erroneous rulings on instructions, admission of evidence and duration of imprisonment. Defendant admits the homicide charged i...
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A power of sale contained in a conveyance of land, executed on March 3, 1915, to secure the payment of a debt, stipulated that the grantee should be authorized, upon the happening of a certain contingency, to sell the land at public outcry before the court-house door of the county wherein tire land was situated, to the highest bidder for cash, “after advertising the time, place, and terms of sale ...
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The petition fails to allege a statutory adoption of the child under the Civil Code, § 3013, providing how a father may legitimate his illegitimate child, or under § 3016 providing-how one person may adopt another as his child. In Crawford v. Wilson, 139 Ga. 654 (78 S. E. 30, 44 L. R. A. (N. S.) 773), there was no statutory adoption, hut the child when an infant about three months old, being aband...
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Tlie thirteenth section of the act of the General Assembly, approved August 14, 1913 (Acts 1913, pp. 123, 130), generally referred to as the tax-equalization law, provides: “ It shall be the duty of the State tax-commissioner to carefully examine the tax digests of the several counties of this State, filed in the office of the comptroller-general, and to compare said digests for the purpose of asc...
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The conviction of the defendant did not depend entirely upon circumstantial evidence; the evidence, circumstantial and direct, amply authorized the verdict, and none of the special grounds of the motion for a new trial is meritorious. Judgment affirmed. Luke and Bloodworth, JJ., concur. ...
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concurring specially. I concur in the rulings announced in paragraphs 1 and 2, but dissent from the ruling announced in paragraph 3. I concur in the judgment of reversal. T. Hoyt Davis, Powell & Lumsden, for plaintiff in error....
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1. The sufficiency of the description of the hogs alleged to have been stolen was brought in question by demurrer to the indictment, in which they were described as “ one red and black spotted sow hog of value $10, one white and black spotted sow hog of value $10, one red and black spotted male hog of value $10, one dark red male hog of value $10, and two white and black spotted sow hogs, of value...
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The verdict was demanded by the evidence, and the special grounds of the motion for a new trial are without merit. Judgment affirmed. Luke and Bloodworth, JJ., concur. Eldon L. Joiner, for plaintiff in error. Clifford E Hay, solicitor-general, contra....
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I. In the state of the record it does not appear that the judge abused his discretion in overruling the defendant’s motion for a continuance of the case. 2. The charge of the court upon the subject of a reasonable doubt was not error for any reason assigned. 3. The remaining special grounds of the motion for a new trial, not having been argued in, the brief of counsel for the plaintiff in error, a...
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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. The court’s instructions in reference to the use of certain annuity and mortality tables which had been put in evidence were erroneous in some material particulars, and under all the facts of the case, including the amount of the verdict ($10,000), this court is unable to say that the error was harmless to the defendant, and that these erroneous instructions did not mislead the jury and cause t...
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1. The amendment to the petition did not set out a new cause of action, and the court did not err in allowing it over the objections urged. (a) There was no merit in the objection that the amendment set up facts which developed after the filing of the original petition in the ordinary’s court. Jt is not error upon the trial on appeal in the superior court, to allow an amendment to the pleadings wh...
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The evidence authorized the verdict, and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment overruling the motion. Judgment affirmed. Luke and Bloodworth, JJ., concur. In subdivisions of ground 1 of the amendment to the motion for a new trial, beginning, “that the verdict is contrary to evidence and without evidence to support it,” for reasons ...
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1. The first grant of a new trial is complained, of in the main bill of exceptions. The evidence was conflicting. “ It may now be considered as settled that this court will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves qu...
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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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delivered the opinion of the court. This case is brought before us by a writ of error to a judgment of the Corporation Court of the city of Eadford, entered in. a proceeding by motion in which C. C. Dunlap was the plaintiff, and the Eadford Water Power Company (the plaintiff in error) was defendant. The plaintiff, Dunlap (defendant in error), was engaged in business, in the year 1918, in Galena, 1...
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The injunction awarded plaintiffs pursuant to the prayer of the bill inhibited the occupation and use of Stollings Street of Laurel City, an unincorporated addition to the town of Clothier, for the purpose of the construction, maintenance and operation thereon by defendant of a standard gauge railroad to haul and transport its timber, severed and to be severed and cut into logs, to defendant’s mil...
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The decree under review on this appeal, setting aside a deed, as having been made in fraud of the rights of creditors, and enforcing a judgment lien on the property conveyed by it, is founded upon the theory of duty on the part of close relatives between whom a conveyance has been made, directly or indirectly, which stands in the way of a creditor complaining of it and charging fraud in the execut...
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From the findings of fact it appears that heretofore, at June Special Term, 1920, in action duly instituted and tried in the Superior Court of Henderson County, before his Honor, B. F. Long, judge, and a jury, plaintiff was granted an absolute divorce from defendant, and the care and custody of the children of the marriage, to wit, Margaret *Page 595 E. Flack and Frank Flack were awarded to plain...
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From these facts it appeared that defendant, C. L. Price, contracted and agreed to build a house for Carson Horne, furnishing labor, materials, etc., therefor at a stipulated price, and gave bond for faithful performance of the contract, with defendant lumber company, etc., as surety, said bond containing, among other things, the following stipulation: "Now, therefore, the condition of this obliga...
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This suit was brought to recover damages for the breach of a contract, whereby the defendants agreed to sell and deliver to the plaintiff one thousand cases of No. 1 Standard Alaska Pink Salmon, 1919 pack, 48 cans to the case, at the price of $1.50 per dozen cans, one and a half per cent off if paid for within ten days from date of shipment. Defendants delivered only 310 cases of the salmon, leavi...
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This is an action for divorce, which comes here by appeal from an order made upon motion by the plaintiff for alimony and counsel fees. Plaintiff alleged willful abandonment of her by the defendant without just cause, cruel treatment, failure to support, and other matters in aggravation, and among them, that he left her without any means for her support, and that she had none of her own. Defendant...
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December 20, 1920. The opinion of the Court was delivered by The defendant was tried, convicted, and sentenced for car-breaking and larceny before Judge Prince, and a jury, at the May term of Court, 1920, for Anderson county, and *Page 202 appeals, and by his appeal raises but one question, and that is whether a person who has pleaded guilty of grand larceny, who has not been sentenced, is a comp...
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December 20, 1920. The opinion of the Court was delivered by The defendants were convicted of simple assault and battery, and, after being sentenced, appeal, and by exceptions, three in number, complain of error in not directing a verdict of not guilty as asked for by the defendants and error in the Judge's charge. The facts were that H.H. Graham, who lived at Lake City, got off of the train arriv...
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The opinion of the Court was delivered by The appellant’s argument thus states the appellant’s case: “This was an action to recover on an account for goods sold and delivered, and the defendant, denying that he was indebted to the plaintiffs, set up a counterclaim, alleging that, in the latter part of August, 1913, the plaintiffs purchased an automobile truck from him for $1,000, and promised...
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The opinion of the Court was delivered by This is an appeal from an order allowing temporary alimony and suit money made by his Honor, Judge Townsend, who heard the matter on affidavits and passed an order allowing the respondent $70 per month, temporary alimony, and allowing her counsel $300 suit money. Appellant appeals, and by six exceptions, alleges error. The exceptions allege abuse of d...
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The opinion of the Court was delivered by This is an action for partition. The defendant demurred to the complaint on the ground that the complaint showed that the defendant had been in exclusive possession of the land long enough to presume a deed from its cotenants The demurrer was overruled, and this appeal is from the order overruling the demurrer. Demurrer is not available to the defenda...
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The opinion of the Court was delivered by This is an. appeal from a ruling made by his Honor, County Judge Whaley, and is a question simply of procedure. Upon the hearing of the case, plaintiff’s counsel declined to open his argument, and defendant’s counsel requested his Honor to instruct plaintiff’s counsel to do so. His Honor declined to do so, and exception was noted and appeal taken, and t...
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December 20, 1920. The opinion of the Court was delivered by The following statement appears in the record: The respondent, as sheriff of Aiken county, levied upon the following chattels, alleged to be of the value given herein below, to wit, a mule, $225; about 400 bushels of corn, $900; three bales of cotton, $408.80. The respondent levied upon the said chattels as the property of appellant's hu...
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1. The Civil Code, § 5801, makes parties wholly incompetent to testify, only when adultery is the sole basis of a suit, action, or proceeding. AAHiere a husband instituted an action for damages ' in two counts, the first based on alleged alienation of the affections of his wife and the second on alleged criminal conversation with his wife, the defendant is a competent witness as to the -matters al...
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1. If the accused had desired a more elaborate statement of the law of self-defense than that submitted to the jury, he should have requested it in writing. 2. “In the trial of one charged with the offense of murder, the failure of the judge to charge upon the law of voluntary manslaughter will be no reason for reversing the judgment, when 'the counsel for the accused, in response to a statement b...
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1. The grounds of the motion for new trial complaining of rulings on the admissibility of evidence are not insisted upon in the briefs of counsel for the plaintiffs in error, and will be treated as abandoned. 2. In an action of complaint for land, instituted by a woman against several defendants, the plaintiff alleged and introduced evidence tending to show that her father died intestate while in ...
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.1. A careful examination of the evidence discloses that there is no evidence of mental incapacity on the part of the grantor at the time of the execution of the deeds. The nearest approach to it was by the evidence of the husband, of the plaintiff, who testified that the grantor’s “mind seemed to come and go. He could not remember what had been said to him.” Other evidence, both for the plaintiff...
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(After stating the foregoing facts.) In Trustees of the Academy of Richmond County v. Augusta, 90 Ga. 634 (17 S. E. 61, 20 L. R. A. 151), it was held that dioses in action in the hands of trustees were taxable to the trustees at the domicile of the trustees; and that where one of the trustees resided within and two resided without the limits of a municipal corporation, the pro rata share of the tr...
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This case comes to the Supreme Court on questions certified by the Court of Appeals. Several questions are certified; but the jurisdiction of the Court of Appeals and of this court depends upon the answer to the second question, which is as follows : “ Where a defendant filed a plea of res judicata, which was by agreement submitted to the trial judge for determination upon questions both of law an...
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No error is assigned on any ruling of the court made on tlie trial of the ease. The motion for new trial was on the usual general grounds. The verdict was supported by the evidence, and the court did not err in overruling the motion for new trial. Judgment affirmed. All llie Justices concur. ...
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A controversy as to the location of a site for a school building and the erection of a schoolhouse thereon, in a school district wherein an election has been held to determine the question whether bonds should be issrxed for the purpose of building a schoolhouse, and the result thereof declared in favor of such issuance, must be determined under existing laws respecting the administration of the p...
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Mrs. Leila Fountain brought a petition against her husband, Henry Fountain, and prayed that a rule be issued requiring him to show cause why he should not be attached for contempt because of his failure -to comply with the terms of a judgment formerly rendered in the superior court, requiring him to pay the petitioner stated sums as temporary alimony. Upon the hearing of this petition, after the i...
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Evans Pope was tried under an indictment charging him with the offense of murder; and the jury trying the case returned a verdict of guilty, with a recommendation, of life imprisonment. The defendant’s motion for new trial was overruled. 1. The court in his charge to the jury defined malice as follows: “Malice is a state of mind, or intention, to kill under such circumstances as the law would not ...
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1. “At the trial term the judge in his discretion, upon the payment of costs, may allow the default to be opened for providential cause preventing the filing of a plea, or for excusable neglect, or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened on terms to be fixed by the court. In order to allow the default to be thus opened, the...
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1. Where an original deed is lost, a copy of such deed may be established by the superior court of the county where the land lies, and, when so established, shall have the effect of the original deed. Civil Code (1910), § 4191. 2. Such .proceeding does not involve the question of title to the land, so as to confer jurisdiction on the Supreme Court to hear and determine such case when brought from ...
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The motion for now trial consists of the general grounds, and the solo exception is to the judgment overruling the motion. The verdict is supported by evidence, and the court did not err in refusing a new trial. Judgment affirmed. All the Justices concur. ...
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1. Where a lease oí lands contains a clause providing that the lessee, its successors, and assigns are to have the use of the timber upon the lands leased, “ including the right to cut and remove the same from said lands within seven years from date, after which time said lease may be extended by payment of 25 cents per acre per year,” it is essential to the right of the lessee or its assigns that...
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(After stating the foregoing facts.) The grounds of demurrer to the petition were special; and if it were subject to them, the petition should have been dismissed unless cured by amendment. Civil Code, § 5631. If the judgment of the trial court on the demurrer was not in effect a dismissal of the petition, such judgment was not a final disposition of the case in the trial court, but left it pendin...
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Joe Howland was indicted and tried for the murder of his mother-in-law, Mrs. Della Hay Tliq jury returned a ver*734diet of guilty, with recommendation to mercy. His motion for new trial was overruled, and he excepted. 1. When the case was called for trial, the defendant, through his counsel, informed the court that a certain person, not formally connected with the case, had circulated a petition a...
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(After stating the foregoing facts.) 1. While there was some evidence that the defendant and his predecessors had been in possession of the land in controversy for more than seven years, the court was not required to charge the jury on prescriptive title arising from adverse possession under color of title for seven years. The jury were given instructions under which they were required to pass upo...
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“ The judges of the superior and city courts have power to hear and determine, in vacation as well as in term time, without any order passed in term time, all motions for new trial, certioraries, and all such other matters as they now can hear and determine in term time, and which are not referred to a jury.” Civil Code, § 4852. “ The hearing of all cases provided for in the preceding section shal...
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This is a petition by certain residents and taxpayers of local school district 24, also called Centralhatchee district, in Heard County, against the board of trustees of the district, the county superintendent of schools, the county board of education, and the tax-collector of the county, to enjoin them from collecting a tax levied on the property in the district in pursuance of an election held t...
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1. “ The order of the judge overruling the motion for a new trial after having dismissed the same was a mere nullity.” Hopkins v. Jackson, 147 Ga. 821 (2), 823 (95 S. E. 675). 2. According to the principle ruled in Pendergrass v. Duke, 140 Ga. 550, 552 (79 S. E. 129), the judgment dismissing the motion for a new trial was not erroneous. (а) The facts shown in the record do not amount to a waiver, ...
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Is the petition, the substance of which is set out in the foregoing statement of facts, subject to the demurrer filed against it? One of the grounds of demurrer is that the suit is multifarious, in that it seeks to join a suit for accounting for funds, with a suit for the recovery of certain bonds alleged to have been converted by each of the three defendants, and also with .a suit for relief agai...
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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. 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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(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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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. 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. 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. 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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The evidence amply authorized the verdict, and none of the special grounds of the motion for a new trial requires a reversal ■of the judgment below. Judgment affirmed. Luke and Bloodworth, JJ., concur. ...
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1. Before exceptions pendente lite can be considered by this court, error must have been originally 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. Jones v. Ragan, 136 Ga. 653 (71 S. E. ...
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CLARK, C. J., dissenting. The action is to recover damages for physical injuries caused by alleged negligence of defendant company in not properly safeguarding its machinery and in permitting plaintiff, a child twelve years of age, or little over, to go about same whereby he was caught in the cogs of certain portions of the machinery and received painful and permanent injuries to plaintiff's great...
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The defendant and John H. Cooper were tried for murder of Dan Sprinkle. The solicitor at the beginning of the trial announced that he would not ask for a verdict of murder in the first degree, and at the close of the testimony for the State took a nol pros as to Cooper. Canup was a policeman in the town of Andrews. The deceased (Sprinkle) was drinking that night, and was boisterous and profane in ...
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¥e bave examined tbe evidence carefully and are of opinion that it is ample to sustain tbe verdict. Tbe evidence of tbe witness Fallon, wbicb was objected to, was clearly competent as tending to prove tbe loss of tbe tobacco. No error. ...
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This is an action to recover damages for personal injury. The negligence complained of is that the defendant placed a water meter box on one of its sidewalks two or three inches below the surface, with an insecure covering, and permitted dirt and leaves to accumulate thereon. On 27 October, 1917, the plaintiff, while running down Black Street in said city stepped on the top of a water meter box, t...
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The State issued grants to J. J. Colvard, covering the land in controversy, under whom both plaintiff and defendant claim. Colvard, described in one part of the record as treasurer of Graham County, and in another as tax collector, executed a mortgage to the clerk of the Superior Court in lieu of an official bond, as is allowed under Rev., 265, and it is under this mortgage the plaintiff claims. T...
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ALLEN, J., dissenting; BROWN, J., concurring in the dissenting opinion. At February Term, 1917, of Mecklenburg, Paul Chatham and the Charlotte Rapid Transit obtained judgment against the defendant, the Mecklenburg Realty Company, for $10,000 and interest from date of judgment. On appeal, this was affirmed with modification that the judgment should bear interest from 19 May, 1913, the date of the c...
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On the trial it appeared that plaintiff is in possession of the land in question claiming to own same under a deed from W. L. F. Woods and wife, Laura, dated 22 February, 1919, duly proven and registered said deed containing a stipulation by way of condition subsequent that the grantee would maintain said grantors during their lives, and on their deaths, see that they were properly buried, etc. It...
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The defendant, together with one Gertrude Sams, was indicted for the murder of his wife. At the trial the defendant, Frank Henderson, was convicted of murder in the first degree, and Gertrude Sams was acquitted. From the judgment upon such conviction, Frank Henderson appealed to this Court. *Page 736 The defendant moved for a continuance of the cause because he had not had time to prepare his def...
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The opinion of the Court was delivered by The defendant was indicted for the murder of B. B. Butler, and the jury rendered a verdict of guilty. The defendant made a motion for a new trial, which was refused; and the sentence of death by electrocution was imposed upon him, from which he appealed. The first, second, and third exceptions will be considered together, and are as follows: (1) “ ‘...
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December 20, 1920. The opinion of the Court was delivered by This was an action for recovery of damages for two intrastate shipments of cotton seed and penalty as to each shipment. After issue joined the case came on for trial before Judge Bowman, and a jury. At the close of plaintiff's evidence defendant moved for a nonsuit, on the ground that the bill of lading issued by the plaintiff contained,...
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The opinion of the Court was delivered by This is a case of housebreaking and larceny. The larceny is the stealing of a gun. The prosecuting witness said that he was the owner of a valuable gun; that he attended his brother’s funeral; that, before going, he hid his gun in his house and locked the door; that, on his return from the funeral, he found that his house had been broken open and his gu...
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December 20, 1920. The opinion of the Court was delivered by This was a suit on account. The defendant interposed the defense of the statute of frauds. The cause was tried at the April term of Court for Greenwood county, 1920, before Judge Sease, and a jury, and resulted in a verdict in favor of plaintiffs for $634.70, and after entry of judgment defendant appealed. The exceptions, three in number...
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The opinion of the Court was delivered by The appellant was indicted for selling intoxicating liquor. This is the second trial. The State’s witness, S. W. Sauls, testified as follows: “Resident Jasper county; lived there on 17th June, 1917; knows defendant; went to his house on said date and tried to buy some whiskey; said he didn’t have any, and went off and sent George Manigault, another ne...
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The opinion of the Court was delivered by This is an appeal from an order of Judge Sease striking out defendants’ answer as frivolous, irrelevant, -and immaterial, and the further grounds of the motion were that the answer was libelous, impertinent, manifestly for the purpose of delay, and stated no defense of the action. Affidavits were attempted to be introduced at the hearing of the motion b...
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The opinion of the Court was delivered by ...
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December 20, 1920. The opinion of the Court was delivered by This is an appeal from sentence imposed by his Honor, Judge Gary. The defendant was tried and convicted before his Honor, Judge Memminger, under section 618, Criminal Code 1912, and sentenced by Judge Memminger to pay a fine of $10,000, one-half to the informer and the other half to go to the Bridge Company. An appeal was taken from this...
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December 20, 1920. The opinion of the Court was delivered by This is an action for $67.12 for a shortage in a shipment of 25 bags of rice. The car containing the rice arrived in Summerton on Saturday morning. It was an order notify shipment. The plaintiff turned over to the defendant the bill of lading with instructions to send up the rice when it came. The agent of the railroad notified the draym...
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December 20, 1920. The opinion of the Court was delivered by "This is an action for damages by the plaintiff, Mrs. J.R. Murrell, against the defendant, Charleston and Western Carolina Railway Company, for having been carried by the town of McCormick and failing to make connection with the train at that point, which passed through the town of Mt. Carmel, on the Anderson Branch of the said railway, ...
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December 20, 1920. The opinion of the Court was delivered by This is an action brought for the purpose of ejecting a tenant holding over after the expiration of his contract under section 3509 of the Civil Code. The magistrate held that the first year it was a tenancy at will after the 31st of December following the expiration of the first year. An appeal was taken from magistrate's Court to the C...
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(After stating the foregoing facts.) Whether the plaintiffs in this case were entitled to recover depends upon the construction of the deed set forth in the statement of facts; and the precise question involved is whether, under the language of the deed, G. B. Slappey, the grantee in the deed, took a fee in the land, defeasible in case he should die without lawful child or children in life, or lin...
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This case is controlled by the ruling in the case of Slappey v. Vining, this day decided by this court. Ante, 792. Judgment affirmed. All the Justices concur. ...
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(After stating the foregoing facts.) 1. Movant insists that the court should have given in charge to the jury the law contained in paragraph 1 of section 3224 of the Civil Code, which declares that “ Every assignment or transfer by a debtor, insolvent at the time, of real or personal property, or choses in action of any description, to' any person, either in trust ox for the benefit of, or in beha...
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Mrs. Minnie Mills, alleging that she and the defendant, her husband, were living apart and in a bona fide state of separation, filed her petition praying that the. defendant be required to pay her temporary alimony. It was alleged in the petition that the defendant wilfully deserted the plaintiff and *783had continuously abandoned her since the time oí the desertion; that this abandonment was with...
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W. T. Oorbett as next friend of his minor son, Homer Corbett, a child six years of age, brought suit for personal injuries against the Atlantic Coast Line Railroad Company. The plaintiff alleged that the defendant was negligent *748in leaving and placing what is known as a “velocipede car” in an open and exposed place near the depot in the town of Manor, where the public were accustomed to travel ...
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Joe Little, Grover Little, George Gable, Walter Am or, and Joe Stephenson Jr. were jointly indicted for murder. The defendants elected to sever, and Grover Little was placed upon trial. The jury returned a verdict of guilty of the offense of murder, with a recommendation to mercy. The defendant’s motion for new trial was overruled, and he excepted. The deceased, Oscar Tolbert, was the marshal of T...
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Lee Curry was indicted, tried, and convicted of the crime of murder. His motion for new trial was overruled, and he excepted *737Under the evidence and the defendant’s statement the three-grades of homicide, murder, voluntary manslaughter, and justifiable homicide, were involved. The court instructed the jury on the subject of voluntary manslaughter. • In one ground of the motion for new trial err...
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1. Neither the evidence nor the defendant’s statement authorized the court to give in charge to the jury the provisions of the Penal Code, § 75: “All other instances which stand upon the same footing of reason and justice as those enumerated shall be justifiable homicide.” Accordingly it was not error to refuse the written request so to instruct the jury. Compare Jackson v. State, 135 Ga. 684 (2-a...
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1. Neither the eighteenth amendment to the constitution of the United States, nor the national prohibition act generally referred to as the Volstead act, designed to carry that provision of the constitution into effect, had the effect of superseding or in any wise changing- the State statute (Act Ex. Sess. 1917, p. 7) declaring it to be a misdemeanor for one to have in his possession, custody, or ...
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1. Neither the eighteenth amendment to the constitution ot the United States, nor the national prohibition act, generally referred to as the Volstead act, designed to carry that provision of the constitution into effect, had the effect of superseding or in any wise changing the State statute (Act Ex. Sess. 1917, p. 7) declaring • it to be a misdemeanor for one to have in his possession, custody, o...
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1. At the May term, 1920, of the city court of Hall county an accusation was preferred against Malcomb B. Smith, charging him with the offense of misdemeanor; for that in Hall county on February 29, 1920, the-accused “did unlawfully, . . then and there accept delivery of, receive, control, and possess spirituous, vinous, malt, and intoxicating liquors, to wit, about 35 gallons,” contrary to the la...
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The motion for a new trial is on the general grounds; and the verdict being supported by evidence, the discretion of the trial judge in overruling the motion will not be controlled. Judgment affirmed. All the Justices concur. ...
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Thomas H. Glenn and Wooten Huff filed an equitable petition in Oglethorpe superior court, against J. A. Beazley of Oglethorpe county, and J. A. Cauthen of Elbert county. The petition alleged in substance, the following: Wooten Huff owned in fee simple a tract of land in Oglethorpe county. In 1899 he borrowed of the defendant Cauthen eighty dollars, and “in order to secure said debt executed to sai...
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(After stating the foregoing facts.) The constitution of this State, article 8, section 4, paragraph 1 (Civil Code of 1910, § 6579), declares: “Authority may be granted to counties, militia districts, school districts, and to municipal corporations upon the recommendation of the corporate authoritjr, to establish and maintain public schools in their respective limits by local taxation,” etc. This ...
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Mrs'. Anna Harvey brought ejectment against Mrs. J. R. Thornton, to recover a certain tract of land. After the conclusion of the evidence the court directed a verdict for the plaintiff. A motion for new trial was made, which .was heard by the successor to the 'judge who directed the verdict. The judge hearing the motion passed an order setting aside the verdict and .granting a new trial, to which ...
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A suit pending in the superior court was dismissed, as shown by an entry on the docket. Subsequently to the dismissal a motion to reinstate the ease was made by the plaintiff. The defendant made a motion to dismiss this motion to reinstate, and the latter motion was sustained. Neither, in the motion to reinstate the case nor in the motion to dismiss that motion was the character of the case origin...
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1. The evidence being conflicting as to the cause of the separation — as to whether the wife voluntarily left the husband or was forced to leave him because of actual and threatened personal violence, the judge did not abuse his discretion in allowing as alimony the sum awarded for the support of the child, and counsel fees to the wife. Aiken v. Aiken, 131 Ga. 578 (62 S. E. 820). 2. The petition p...
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1. Whore one on trial, charged with the offense of rape, stated to the jury that the female consented to the alleged criminal act, this did not constitute an attempt to impeach the character of the latter, otherwise than by contradicting the facts testified to by the witness to the effect that the intercourse was forcible and against her will; and it was error to admit, over appropriate objection,...
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On May 4, 1918, Saxton Dukes instituted an action against the Citizens National Bank of Baltimore and the Bank of the United States of New York, alleging them to be non-resident corporations. The petition alleged that the defendants were seeking to sell certain land and jiersonalty, the property of plaintiff, under an alleged power of attorney. The petition contained a copy of a notice of public s...
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The order overruling a motion to continue the hearing of a motion to dissolve a temporary restraining order, and a judgment dissolving the temporary restraining order, can not be reviewed by the Supreme Court on a fast writ of error, under the Civil Code (1910), § 6153. Young v. Harris, 146 Ga. 338 (91 S. E. 39) ; Akins v. Mull, 150 Ga. 459 (104 S. E. 209), and cases cited. Writ of error dismisse...
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1. Under the allegations of the petition the plaintiffs are without a complete and adequate remedy at law, and the case as made is one cognizable in a court of equity, where complete equitable relief can be administered. Compare the cases of Ford v. Finney, 35 Ga. 258, and Morgan v. Argard, 148 Ga. 123 (95 S. E. 986). 2. Where, as in the hill of exceptions in this case, one of the assignments of e...
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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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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 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 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. 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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(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. 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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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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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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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. 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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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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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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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. 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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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. 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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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 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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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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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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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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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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(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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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 making- the foregoing statement, delivered the following opinion of the court: There are numerous assignments of error, but in the view we take of the case it is necessary for us to consider but one question raised thereby, and that is as follows: 1. Is there any evidence in the record to support the verdict of the jury in finding that the railway company was guilty of any negligence which w...
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■ On the eleventh day of November, 1920, petitioner was found guilty by a justice of the peace of McDowell County, of carrying about his person a black jack, and by said justice adjudged to pay a fine of fifty dollars and to serve a sentence of six months imprisonment in the jail of said County. He immediately applied for, and was' by said justice granted, an appeal from said judgment of convictio...
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The defendant was convicted of receiving and keeping liquor on hand for sale, and from the judgment upon such conviction appealed to this Court. There were four counts in the bill of indictment, the first charging the transporting of liquor; second, the delivering of liquor in a quantity greater than one quart; third, the receipt of more than one quart of liquor during fifteen consecutive days; an...
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"1. Did the defendant negligently create a condition about its transformer house which enabled the intestate, William Lanning, to come into contact with plaintiff's wires, as alleged in the complaint? Answer: `Yes.' "2. If so, was such negligence of defendant the primary cause of said William Lanning receiving injuries resulting in death, as alleged in the complaint? Answer: `Yes.' "3. What damage...
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Special proceedings for partition among the parties of a tract of 162 1/2 acres, which was allotted, under the will of Rolley Brim to Katharine Brim, the widow of Rolley Brim, and the rights of the parties depend upon the construction of item 2 of his will, which, with some other sections, is as follows: "Item 2. I give and bequeath to my wife two good beds and one cow. . . . Also I bequeath to he...
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This is an action to recover damages for a trespass on lands embraced in grant No. 10391, entry No. 1178, as shown on the court map. The grant was issued to J. B. Caringer and W. T. Shuler on 12 December, 1890. Plaintiffs are the heirs at law of W. T. Shuler. At date of this grant, and up to his death, W. T. Shuler, father of plaintiffs, and his wife, Rachel Shuler, were living on tracts 1058 and ...
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The following is the judgment rendered: This cause, coming on to be heard, and being heard by Honorable John H.Kerr, Judge, holding the courts of the Seventh Judicial District, there being present Bryan Grimes Cowper and John H. Boushall, trust officer of The Raleigh Savings Bank Trust Company, one of the defendants herein, representing the defendants to this action, and Albert L. Cox, counsel fo...
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The jury might very well have acquitted the defendants, but as it did not, the main question on this appeal is whether or not there is any evidence which justified such conviction. That evidence is wholly circumstantial, but, from the nature of such offenses, that quite frequently is the only evidence available, but sometimes it is of so strong a character as to be really more convincing than any ...
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Plaintiffs, the children and heirs at law of Hugh Murphy, deceased, and grandchildren of Clara Patton Murphy, also deceased, have instituted this action against the defendants, alleging in effect that as heirs at law and potential beneficiaries under the will of Clara Patton Murphy they are owners of one undivided sixth of the lands of the testatrix devised by her will, and are entitled to be decl...
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The opinion of the Court was delivered by An automobile, belonging to the plaintiff and containing some of its officers and servants, was going along Meeting street, in the city of Charleston When it came to Columbus street, it came to the tracks of the defendant street car company. The traffic is heavy here, and the city stations a traffic policeman to direct the traffic, and by an ordinance i...
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The opinion of the Court was delivered by The defendant was tried and found guilty, under section 337 of the Criminal Code, which is as follows: “Any person'or persons who shall sell or dispose of any personal property on which any mortgage or other lien exists, without the written consent of the mortgagee org¡ lienee, or the owner or holder of such mortgage or lien, and shall fail to pay the...
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The opinion of the Court was delivered by *260 1 This appeal was dismissed by Judge Prince. A motion was. made in this Court to reinstate the appeal, and was resisted on the ground of want of jurisdiction. This Court has ’ full jurisdiction to reinstate the appeal in its discretion, and its discretion grants the motion. The respondent, Mrs. Effie Dillishaw, is the mother of several childr...
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The opinion of the Court was delivered by Plaintiff sued defendant on two causes of action for commissions alleged to be due and owing to him by defendant on sales of defendant’s goods made by plaintiff as defendant’s agent. In the first cause of action he alleged that in 1917 he made sales aggregating $26,000, on which he was entitled to a *264 commission of 10 per cent, and prayed for jud...
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December 20, 1920. The opinion of the Court was delivered by The plaintiff was injured by an automobile owned and operated by Wood. A few days afterwards Wood sold the automobile to Smith. Smith in turn sold it to the appellant for $750 cash. Plaintiff was injured November 15, 1919. On January 30, 1920, he commenced suit for personal injury against Wood and Brazier, and attached automobile in Brai...
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The opinion of the Court was delivered by This is an appeal from an order of Judge Memminger, confirming a report of the master for Charleston county, and involves the question whether or not the bailment of a chose in action is within the terms of section 3740 of volume I of the Code of 1912. Both the master and his Honor held that it did. The exceptions must be sustained. The statute does n...
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The opinion of the Court was delivered by The Circuit decree by Judge Gary contains a clear and sufficient statement of this case. Let it be reported. *289 The exceptions raise several questions: 1. That the Court has no power in this proceeding to transfer the title of the property to the plaintiff. This objection cannot be sustained, inasmuch as no attempt was made to deal with the titl...
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The opinion of the Court was delivered by This is an appeal from an order of his Honor, Judge Sease, which the following is pertinent to the question involved in this appeal: “This is an action involving * *' * construction of the will and codicils of Ferdinand Leopold Schnell. “Upon hearing arguments and considering questions of law arising in this case, I am of the opinion that a proper c...
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The defendant was indicted for the violation of the rules and regulations adopted by the State Board of Agriculture to prevent the infection of sound cattle from other cattle infected with tick fever and to cure those already infected. The complaint averred that the defendant in Washington Township in the county of Beaufort, "on or about 1 October, 1920, unlawfully and willfully refused for five d...
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One of the plaintiffs, Erskine Motors Company, is a partnership composed of J. V. Erskine and M. A. Erskine, who are residents of North Carolina, and J. M. Erskine, a resident of Tennessee, and one of the defendants is a resident New Jersey, and the other is a resident of Georgia. On 1 December, 1919, the copartnership entered into a written contract with the defendant to recover damages for the a...
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We think that the nonsuit was properly granted and there was no error in the admission of the evidence, which was conclusive, that this freshet was the largest over known in that section and “the memory of man runneth not to the contrary.” There was no evidence of negligence in the construction of the dam and powerhouse, or in clearing away the ledge of rock and shrubbery for the construction of ...
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The action is to recover damages for the alleged wrongful killing of the intestate, an employee of the manufacturing company and by the concurring negligence of the two defendants, the manufacturing company and the railroad company, while he was engaged as such employee of the manufacturing company on their yards at Andrews, N.C. in August, 1917. On issues submitted there was a verdict for plainti...
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The negligence complained of was: First, that the defendant had kept on its premises a large and unlawful quantity of gasoline, and stored the same in an unlawful manner, contrary to the ordinance of the city of Greensboro; second, that it kept no watchman upon its premises; third, that it violated section 412 of the ordinances of Greensboro; fourth, that it permitted gasoline in large quantities ...
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The plaintiff sued to recover damages for injuries sustained from an explosion on defendant's premises, in the city of Greensboro, on 3 May, 1919, it being the same explosion described in Stone v. The Texas Co., decided at this term. Nearly all of the questions now raised were passed upon in that case, the only practical difference between the two cases being that there was evidence in this case t...
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NOTE. For further digests, see Stone v. The Texas Co., and Newton v. TheTexas Co. This is the last of the three cases heard together at this term, and growing out of the explosion on 3 May, 1919, at the defendant's plant in Greensboro, at the corner of Lee and Lithia streets. The feme plaintiff was at her home in bed, suffering with a dislocated knee, when the violence of the explosion blew her ou...
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Plaintiff states two causes of action, in the first of which he alleges negligence of the defendant in failing to furnish a safe place to work. The defendant required the plaintiff to work on a lumber dock, which was about twelve feet above the ground on a frame of studding, which had been floored and a steel rail track laid on top of this flooring, upon *Page 639 which track a lumber car or truc...
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The opinion of the Court was delivered by 1, 2 For the reason assigned by his Honor, the Circuit Judge, in sustaining the demurrer, and the appellant having failed to satisfy this Court that he erroneously exercised his discretion in refusing to allow the defendant to amend his answer, the judgment of the Circuit Court is affirmed. Messrs. Justices Hydrick, Watts and Fraser concur. Mr. Ju...
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December 20, 1920. The opinion of the Court was delivered by This is an appeal from an order of Judge Prince, refusing to change the place of trial from Lexington county to Charleston county. The motion was based upon two grounds: (1) Because Lexington county was not the proper county. (2) Because the convenience of witnesses and the ends of justice would be promoted by the change. The motion was ...
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Under the pleadings and the evidence the judge oí the superior court did not abuse his discretion in granting an interlocutory injunction. Judgment affirmed. Sll the Justices concur. Passmore cG Forehand, for plaintiff in error, cited: Civil Code, § 3666; Guin v. Hilton &c. Co., 6 Ga. App. 487, and cit.; Smith v. Smith, 105 Ga. 111; Woodward v. Gates, 38 Ga. 206; 40 Cyc. 508. Perry & Williamson,...
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Upon careful consideration of this case, and in view of the construction placed upon § 4424 of the Civil Code (1910) by this court (Mott v. Central R., 70 Ga. 680, 48 Am. R. 595; Coleman v. Hyer, 113 Ga. 420, 38 S. E. 962; Western & Atlantic R. Co. v. Harris, 128 Ga. 394, 57 S. E. 722), we are of the opinion that the Court of Appeals properly held as follows: “A married daughter, living with and s...
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1. “A judgment founded on a verdict obtained by fraud prac- ticed on the defendant and the court may be set aside, and the original case reinstated, in a court of law, with proper pleadings, and with all the parties at interest as parties to the motion; the motion being made at the term of the court at which the verdict and judgment were entered, and the movant showing that he was not in laches, h...
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Under the ruling in Rooks v. Hart Investment Co., ante, the writs-of error in these cases must be Dismissed. All the Justices concur, except George, J., dissenting. ...
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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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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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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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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 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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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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delivered the opinion of the court. *665[1] On September 21, 1910, E. L. Smith obtained a judgment in the Circuit Court of Russell county against Walter Fletcher and A. L. Grizzle for the sum of $230.00, with interest from August 30, 1909, and costs. In the debt upon which this judgment was obtained Grizzle was surety for Fletcher. On April 2, 1912, Grizzle paid the full amount of the judgment to ...
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delivered the opinion of the court. This proceeding by motion was inaugurated by the following notice and account: “To Speed Mankin: “Take3 notice: That on Monday the 17th day of March, 1919, that being a day of the March term of the Circuit Court of Dickenson county, Virginia, I shall move said court for judgment against you for the sum of $622.40 with interest thereon from February 1, 1919, that...
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delivered the opinion of the court. The Interstate Railroad Company presented to the clerk of the Circuit Court of Wise county for recordation two papers under one cover, each dated February 20, 1920, to-wit: (1) The first paper appeared upon its face to be a lease from the Fidelity Trust Company, trustee, to the railroad company of 500 coal cars at a total price of $1,100,000, of which $200,000 w...
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1. A deed absolute in form may be shown to have been made to secure a debt, where the maker remains in possession of the land. Civil Code, § 3258; Bashinski v. Swint, 133 Ga. 38 (65 S. E. 152); Mercer v. Morgan, 136 Ga. 632 (71 S. E. 1075); Renitz v Williamson, 149 Ga. 241 (99 S. E. 869). 2. Accordingly, the court did not err in overruling the demurrer to the petition, and in admitting in evidence...
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Tom Loyd was tried under an indictment charging him with the offense of rape, alleged to-have been committed upon Lilia Mathis. The jury returned a verdict of guilty, and the defendant’s motion for a new trial was overruled. 1. Error is assigned upon the ruling of the court by which one George Griffin was permitted to testify, over the objection of defendant’s counsel, that he saw certain children...
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1. Equity has jurisdiction in eases of partition, whenever the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just. Civil Code (1910), § 5355. Accordingly, whore the land is sought to be partitioned in an equitable proceeding in which both plaintiff and defendant have notice, and also notice of the appointment of commissioners who make th...
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No complaint is made that any error of law was committed on the trial. The verdict was not unsupported by the evidence, and the court did not err in refusing a new trial. ' Judgment affirmed. All the Justices concur. ...
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1. Where the court in the charge to the jury correctly gives the contention of the losing party in regard to the material and controlling issue in the case, a new trial will not be ordered although that contention is not stated in the manner and form as alleged in the pleadings. 2. The evidence authorized the verdict. Judgment affirmed. All the Justices concur. ...
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On March 38, 1919, Emula C. Whidby brought an action against T. M. Willis for land, for damages for the cutting and removal of timber therefrom, and for mesne profits: The land is the 148-acre tract described in a conveyance from defendant to plaintiff, upon which she relies as title, a copy of which is as follows: “ Georgia, Richmond County. In-, consideration of $100.00, in cash paid to me by Mr...
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1. Tlie agreements here involved, though concerning lands, and inferentially in parol, are not unenforceable, when the facts alleged in connection therewith are considered. Horne v. Mullis, 119 Ga. 534 (46 S. E. 663); Cooley v. Craft, 145 Ga, 298 (89 S. E. 204); Dowling v. Doyle, 149 Ga. 727 (102 S. E. 27). 2. The agreements are not unilateral. 3. The agreements are alleged to have been made with ...
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This is a money rule against a sheriff, involving the claims of the holders of conflicting liens. Ho facts were involved which would entitle either party to equitable relief; and there being no prayer for such relief, the case is not within the principle of Berrie v. Smith, 97 Ga. 782 (25 S. E. 757). The remedy is purely statutory, and the case is not of that class of which the Supreme Court has j...
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I-Iattie Eskridge Frierson filed a petition seeking to have a portion of the last will and testament of Peter Eskridge construed, the will having been duly probated and the executor named therein having duly qualified. The case was submitted on the pleadings and agreed facts to the trial judge, without the intervention of a jury. Item seven of the will was as follows: “ I hereby give and bequeath ...
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A testator gave all Ms estate to his widow for life, with remainder over to his children by her, and if any of his children .should die leaving a child or children, then they should take the share of their deceased parent. He nominated one of his sons as sole executor, who, upon probate of the instrument,, qualified. Three of the remaindermen filed in the court of ordinary a petition against the e...
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(After stating the foregoing facts.) Hnder the conflicting evidence in the case the court did not abuse his discretion in granting the interlocutory injunction. The plaintiff in error insists that there was no consideration for. the option contained in the contract, in the exercise of his rights under which the petitioner claims that he is entitled to specific performance; that there are two parts...
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One item of the will of Julia Bryant was as follows: “I will and bequeath to my daughter, Annie Park, for life, the farm known as the Bobo place, composed of the following1 lots and parts of lots, viz.: 400, 401, 391 & 393, 394, eight acres off 395, five acres off 326, parts of 327 and 328, and half *8of 329, in the 3rd district and 4th section of Floyd county, Georgia. I also give to my daughter ...
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This was an action for land by O. J. Olmstead against Sam and Rena Byrd. The declaration described the land as “ all that certain tract or parcel of land situate, lying, and being in the 17th district G. M., of Liberty county, Georgia, and bounded as follows: on the north by lands of Irene Thomas, east *816by the lands of O. J. Olmstead, south by lands of Clara Collins, and on the west by lands of...
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The act to amend an act entitled an act to incorporate the Savannah Hospital, and the acts amendatory thereof, approved August 19, 1919 (Acts 1919, p. 1405), contains the following language defining the qualifications of voters in elections held for managers of said corporation : “ The annual election for the managers of said corporation shall hereafter occur on the first Monday in Eebruai'y of ea...
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The court did not err in refusing to grant an interlocutory injunction. Judgment affirmed. All the Justices concur. ...
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(After stating the foregoing facts). There are numerous questions involved in this record, as to the character and validity of the franchise of the petitioner and the right of the city council of Eatonton to grant the franchise sought by the Stone-cyphers-; but it is unnecessary to take them up for consideration, as in our opinion the plaintiff is not entitled to, an injunction upon any ground set...
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Under all tlie facts and circumstances submitted at the hearing of this ease, it does not appear that there was an abuse of discretion oil the part of the court in awarding the custody of the minor child to the maternal grandparents, the defendant’s parents. Judgment affirmed. All the Justices concur. ...
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1. The defenses applicable in a case of homicide, provided in the Penal Code, § 71 and § 73, are distinct. Surles v. State, 148 Ga. 537 (7), 538 (97 S. E. 538). Section 71 is applicable where the slayer is without fault, and in that case a seeming or apparent necessity, if acted upon in good faith, is equivalent to a real necessity. Section 73 is applicable to a case of mutual combat, where both p...
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1. The defendants, McCrackin and Eadnev, were convicted of the murder of Jones. Grounds 21 to 31, inclusive, of the motion for new trial relate to written requests to charge, which were refused. These requests include instructions in regard to when a private person may arrest an offender; the' law in regard to killing in a case of mistaken identity where the defendant acts in good faith; the right...
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"The power of appointing receivers and ordering injunctions should be prudently and cautiously exereised and except in clear and urgent cases should not be resorted to.” (Civil Code, 1910), § 5477. Applying the foregoing principle^ to the facts of this case, the court erred in appointing a receiver. Judgment reversed. All the Justices concur, Receivership. Before Judge Irwin. Haralson superior...
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(After stating the foregoing facts.) The constitution of this State, article 7, section 7, paragraph 1 (Civil Code of 1910, § 6563), limits the amount of bonded indebtedness to be' incurred by a county to not more than seven per centum of the assessed value of all of the taxable property therein. The statute providing the manner of incurring such indebtedness, embodied in the Civil Code (1910), § ...
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E. H. Norris brought suit in Macon superior court against Dr. C. H. Richardson, to recover one third undivided interest in a lot in the city of Montezuma. The plaintiff claimed title as an heir at law of his mother, Mrs. Nannie L. Norris, who died seized and possessed of the land. The defendant filed an *32answer alleging that he purchased the lot at a tax sale, in good faith and" for value, and t...
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1. The evidence in this case demanded a verdict for the defendant on the ground set up as a defense to the'action, that the defendant had acquired a good prescriptive title to the land in controversy as against the plaintiffs before the bringing of the suit; and accordingly the court did not err in directing a verdict for the defendant. 2. Evidence tending to show the character of the possession o...
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1. “ 'A prima facie ease is all that is necessary to carry dying declarations to the jury. It is an issue of fact whether or not they were made in the immediate prospect of death.’ Varnedoe v. State, 75 Ga. 181. It is not necessary that the person whose statements are sought to he introduced should express himself as believing that he is in a dying condition. Consciousness of his condition may be ...
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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. 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. 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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delivered the opinion of the court. The Head-Lipscomb-McCormick Company, Inc., appellant, complains of a decree which sets aside and annuls a conveyance of what may be called the northern end of the Gauthier property, conveyed to it by the city of Bristol. After the conveyance, the city filed its bill, alleging that its contract and deed pursuant thereto were ultra vires and void for lack of power...
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These appeals bring up for review decrees of the Circuit Court of Kanawha county entered in the above .entitled causes holding invalid an act of the Legislature providing for a tax on Ihe transportation of oil and gas by means of pipe lines, and enjoining the defendants from collecting the tax levied by said art. The act in question is chapter five of the Acts of the Extraordinary session of the L...
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Upon pleadings unchallenged here and clearly developing well defined issues, the decree under review adjudicated rightful re-entry, by the plaintiff, the Peerless Carbon Black Company, upon certain oil and gas producing property, for non-performance of conditions subsequent, written into a sublease thereof; and, by way of cross-relief,' the right of the principal defendants, E. N. Gillespie and Gu...
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after making the foregoing statement delivered the following opinion of the court: The parties will be referred to as plaintiff and defendant in accordance with their positions in the court below. There is no difference between counsel for the respective parties in regard to the law of the case. The difference between them consists indeed chiefly in their view as to what facts are alleged in the d...
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delivered the opinion of the court. This case requires the construction of Code 1919, section 4775, as amended by the Acts of 1920, page 99. [1] The accused was arrested for violation of section 23 of the prohibition act (Laws 1918, c. 388), on April 18, 1920, and after a preliminary examination by a, justice of the peace was required to enter into a recognizance to appear at the next term of the ...
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delivered the opinion of the court. A street car owned and operated by the Virginia Railway and Power Company, collided with and injured an automobile truck owned by Smith & Hicks, Incorporated. An action for damages followed, in which Smith & Hicks, hereinafter called the plaintiff, recovered against the railway company, hereinafter called the defendant, a verdict upon which the court entered the...
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delivered the opinion of the court. A. K. Kritselis, the plaintiff in error, is the owner of a farm near South Boston, in Halifax county. Charles Petty, the defendant in error, lived in a tenant house on this farm. On Sunday, March 28, 1919, Kritselis carelessly dropped a burning match in some broomstraw near his house. This *177match ignited the broomstraw and the fire thus originated spread unti...
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delivered the opinion of the court. This is an action to recover damages for breach of an oral contract for the division of commissions on a' sale of real estate. The parties admit the existence of a contract, but their evidence is in direct conflict as to the terms of that contra,ct. The plaintiff, Winfree, claims that by the contract he was to furnish the defendants (Gallion & Gregory) the names...
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delivered the opinion of the court. Upon an indictment for robbery Harris was tried, convicted and sentenced to the penitentiary for the term of eight years. [1, 2] 1. As a witness in his own behalf he undertook to give an acount of his whereabouts and occupation from the year 1908 until the date of the robbery, and in doing so he testified with apparent emphasis that during all of that period he ...
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delivered the opinion of the court. H. S. Owens & Son, a co-partnership, hereinafter called the plaintiffs, recovered of the Manss-Owens Company, a corporation of Cincinnati, Ohio, engaged in the manufacture of shoes, a judgment for $2,600 as damages for an alleged breach of contract. The Manss-Owens Company alleges two errors: First, that the court erred in construing the evidence as showing that...
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after making the foregoing statement, delivered the following opinion of the court: [1] 1. The question presented by the record in this case for our decision is whether the provisions of the State automobile law fixing the speed limit therein set forth must be obeyed by a. United States employee while engaged in transporting United States mail in a United States owned automobile pursuant to the di...
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after making the foregoing statement, delivered the following opinion of the court: [1, 2] 1. It is shown by the evidence in the case that the defendant was in actual possession of the two parcels of land in controversy at the time of the institution of the action ; and the defendant’s first assignment of error is taken to the action of the trial court in refusing to permit him to introduce in evi...
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delivered the opinion of the court. S. M. Ormsby was struck and seriously injured by a Ford truck owned by Stephen Putney Shoe Company, Incorporated, and driven by Thomas Cooper, a colored man in the employment of that company. Ormsby died shortly afterwards. An action for damages followed, in which his administrator recovered against the company a verdict and judgment for five thousand dollars. T...
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delivered the opinion of the court. This is an action under the Federal employer’s liability act (U. S. Comp. St. secs. 8657-8665), brought by Eliza Adams, administratrix of her son, Thomas D. Adams, against the Southern Railway Company, to recover damages for the death of plaintiff’s intestate. Thomas D. Adams was the infant son of Eliza and William Adams, and at the time of his death was in the ...
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delivered the opinion of the court. This is an appeal from a decree refusing to cancel a bond executed by B. L. Bruce to W. E. Bibb. The bill prayed for an injunction against the collection of the bond, but the decree held it valid and established it as a debt against the estate of Bruce, subject, however, to a credit of $500. The bond reads thus: “Whereas W. E. Bibb has been my counsel for many y...
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delivered the opinion of the court. Omitting unimportant facts, the case in substance is this: John W. Taylor and wife owned certain valuable farm lands in Accomac county. These lands were heavily encumbered by sundry deeds of trust and judgments. To enforce these liens, and also to obtain on behalf of the trustees the aid and direction of a court of equity in the execution and administration of t...
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delivered, the opinion of the court. This suit was brought by the State for the recovery of the taxes on capital alleged to have been omitted by the Craddock-Terry Company, as manufacturers of shoes, for the years 1903-1915, inclusive, and under the authority of chapter 45 of the Acts of Assembly of 1916, p. 729. There is no controversy as to the facts, and both litigants rely upon the same circum...
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delivered the opinion of the court. This is an action on a fire insurance policy to recover for damage done by fire to a dwelling house in the city of Dan-ville. The policy was the “standard policy,” and provided, amongst other things, that the company should not be liable for loss caused directly or indirectly by riot, or by order of any civil authority, “or (unless fire ensues, and in that event...
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delivered the opinion of the court. H. L. Canody was injured by a train of the Norfolk'and Western Railway Company, at an unprotected highway crossing in the village of Appomattox, while driving a heavily loaded automobile truck. He proceeded by a motion for the recovery of damages for his injuries, and at the conclusion of the testimony the company demurred to the plaintiff’s evidence, which demu...
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delivered the opinion of the court. F. W. Stock & Sons is a corporation engaged in the milling business at Hillsdale, Michigan, and manufactures and sells large quantities of mill feed. In furtherance of its business it maintained an office at Norfolk, Virginia, which was conducted in the corporate name of F. W. Stock & Sons, and was in charge of Harold Stock. Owen & Barker were commission merchan...
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after making the foregoing statement, delivered the following opinion of the court: . The questions sought to be raised by the second and third assignments of error are not presented by the record in this case. The law which the record discloses as enforced by the judgment under review was the State law, enacted, in the exercise of the police power of the State, prior to the going into effect of t...
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The decree of the circuit court complained of refused the plaintiff relief and dismissed her bill brought for the purpose of setting aside a deed which she claims was procured from her by fraud and misrepresentation upon the part of the defendant Benj. Hurvitz. Prior to the death of JVM. Lopinsky in January, 1914, he .txid the defendant Benj. Hurvitz had been partners in business for a number of y...
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1. It is declared in the Civil Code, § 4381: “If a plaintiff shall be nonsuited, or shall discontinue or dismiss his ease, and shall recommence within six months, such renewed ease shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall he exercised only once under this clause.” This statute applies only in cases where a valid ...
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(After stating the foregoing facts.) The material portions of the lease under which the defendant claimed the right to turpentine all of the trees suitable for that purpose are as follows: “The said party of the first part [Shackelford Brothers] in consideration of the sum of $950.00 . . has granted, bargained, leased and conveyed unto the said party of the second part [Fitzgerald], his heirs and ...
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The bill of exceptions in this case was certified on June 8, 1920, and filed in the office of the clerk of the court below on June 12, 1920. The writ of error was filed in the Supreme Court on June 14, 1920. There is no entry of service or acknowledgment of service on the original bill of exceptions, and there was in truth no such entry of service or acknowledgment of service at the time the bill ...
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1. In the Penal Code of this State, which has the force of statutory law, there are two separate provisions on the subject of compounding. Penal Code, §§ 328, 329. In § 328 it is declared: “ If any person shall take or receive any money, goods, chattels, lands, or. other reward, or promise to compound, or shall for any cause compound any crime or offense punishable with death or imprisonment and l...
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Turner brought an action against Dean, for specific performance of a contract for the sale of land. So much of the contract as needs to be here considered is as follcws: “ Georgia, Colquitt County. Received of R. C. Turner the sum of $250, in part payment for the following described real estate, to wit: Two city lots known as lots Nos. 24 and 25 in Block 2 in Southern Terrace, same being in the co...
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The evidence against the accused, Viola Johnson, is insufficient to support the verdict. The facts found in the evidence, of an incriminating character, are so brief that they may be appropriately stated herein. The body of the deceased was found on a railroad-track, with the head completely severed and showing other evidences of violence, The State offered the testimony of a deputy sheriff, to th...
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H. J. Hammontree as guardian of his wife, Hannah May Hammontree, filed a petition for injunction against W. H. and A. R. Cagle. The plaintiff alleged.that the defendants, without right or authority were cutting timber on certain lands of his 'ward, and that the defendants were insolvent. On the interlocutory hearing the court granted a temporary injunction, but provided in his order that the defen...
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(After stating the foregoing facts). It is insisted that under, the provisions of our statutes relating to certain branches of equitable jurisdiction the petitioner is entitled to the injunctive relief sought, and counsel quote the following provisions of law: Civil Code, § 5469, declaring: “ Equity will entertain a bill of peace . . To avoid a multiplicity of suits, by establishing a right, in fa...
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(After stating the foregoing facts.) 1. The controlling question in the case is whether one person can act in the double capacity of mayor of Marietta and of treasurer of the Board of Lights and Waterworks of that city, and receive compensation, or salaries, for the discharge of the duties of both positions. It is insisted that Brumby as mayor cannot hold that office and receive a salary for the d...
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This court can not undertake to answer the questions stated above. After giving them careful consideration we are satisfied that the questions are not of the character which the Court of Appeals is authorized to certify to this court. In the case of Lynch v. Southern Express Co., 146 Ga. 68 (90 S. E. 527), it was said: “With a view of preserving uniformity of decision, the constitution provides fo...
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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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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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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. 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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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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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. 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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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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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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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. 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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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 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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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. 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. 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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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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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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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. “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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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. 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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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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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. 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. 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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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. 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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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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December 20, 1920. The opinion of the Court was delivered by The defendant was indicted for the murder of H.W. Walker, and the jury found him guilty of manslaughter, *Page 339 whereupon he appealed on numerous exceptions, which will be reported. The question whether testimony is relevant must rest necessarily, in large measure, within the discretion of the presiding Judge, and his ruling is not t...
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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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This being a claim ease not respecting title to land, this-court is without jurisdiction to deeide it; and the case is transferred to the Court of Appeals, which has jurisdiction. All the Justices concur. ...
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1. TJie constitution of 1868 did not and that of 1877 does not contain any provision forbidding the head of a family to alienate his reversionary interest in a homestead set apart under the statutory provisions now embraced in the Civil Code of 1910, §§ 3416, 3417. Walker v. Hodges, 113 Ga. 1042 (39 S. E. 480); Carrie v. Carnes, 145 Ga. 184 (88 S. E. 949). Where the beneficiaries of such homestead...
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In view of the pleadings, the evidence submitted, and the principles of law applicable thereto, the judge did not err in refusing to grant an interlocutory injunction. Judgment affirmed. All the Justices concur. ...
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Under the evidence and tlic law applicable thereto, the court did not err in directing a verdict finding the property levied on subject to the execution. Judgment affirmed. All the Justices concur. ...
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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. 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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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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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 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 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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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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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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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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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 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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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. A tenant cannot, in a suit against him for rent, dispute the title of his landlord with whom he has actually contracted as such, even though it might have been then and there known by each of the parties to the agreement that the title to the premises was in fact in another. Strickland v. Styles, 107 Ga. 308 (3) (33 S. E. 85) ; Spence v. Wilson, 102 Ga. 762 (29 S. E. 713) ; Hawkins v. Tanner, 1...
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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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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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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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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 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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This action was brought by John B. Cherry against the Virginia Railway and Power Company to recover damages *264for personal injuries sustained by him while a passenger on one of the company’s street cars. There was a verdict and judgment in his favor, and the company brings, the case here for review. The -accident occurred on Granby street, in the city of Norfolk. The plaintiff was riding on the ...
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delivered the opinion of the court. A. L. Brown, a laborer, while employed by the E. I. DuPont de Nemours and Company, was injured by having his feet and legs burned by the refuse liquid acid in the place designated in the record as the “nitre cake dump” or “salt cake bed” or “basin,” in Plant A. A jury found a verdict in his favor upon which the court entered judgment, and of this the company is ...
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delivered the opinion of the court. In the year 1860 the predecessor in title of the Southern Railway Company acquired title by condemnation to a strip of land through the lands of James M. Dillard for the purpose of constructing a steam railroad, and subsequently constructed said railroad thereon. Afterwards Dillard sold to the predecessor in title of the defendant in error a lot *249on the east ...
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delivered the opinion of the court. *11The controlling facts necessary for the determination of this appeal are these: Under the supervision of the State Highway Commissioner and with the proceeds of county bonds issued for the purpose of road construction, the Board of Supervisors of Louisa county were constructing a public highway. It being deemed wise to change the location of the road in many ...
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delivered the opinion of the court. This is an action to recover damages for personal injuries sustained by the plaintiff, Miss Harriet W. Davidson, while in the act of alighting from one of the electric cars of the defendant, Washington and Old Dominion Railway. There was a demurrer to the evidence, upon which the trial court rendered a judgment for the defendant, and thereupon the plaintiff brou...
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delivered the opinion of the court. In 1913, the W. J. Brent Construction Company, of Norfolk, Virginia, entered into a contract with the United States Government to construct a post office building at Greenville, N. C. Pursuant to the requirements of the government, the construction company executed a bond to the United States for the faithful discharge of its undertaking. This bond was executed ...
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delivered the opinion of the court. This is a suit brought by the Savings Bank of Richmond to set aside, on the ground of fraud, a deed made by J. C. Hutcheson to his father, John A. Hutcheson. John A. Hutcheson, the appellant, conducted for many years a considerable and apparently, profitable business in *285the city of Richmond in the sale and storage of leaf tobaccos on commission. In the cours...
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delivered the opinion of the court. The examiner of records for the city of Richmond assessed the P. Lorillard Company, Inc., with $2,000, income tax for 1916, on income received during the year 1915, and $5,000 income tax for 1917, on income received during the year 1916, and reported it to the commissioner of the revenue, who entered the same on his books. The company feeling aggrieved thereby, ...
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delivered the opinion of the court. E. A. Leitch executed to The Country Club of Virginia, Inc., a bond in the penalty of $3,000, with the United States Fidelity and Guaranty Company as surety, conditioned to *309reimburse the club for all pecuniary loss sustained by it for money, securities,, or other personal property in the possession of Leitch, or for the possession of which he might be respon...
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Plaintiff’s bill, filed at September rules, 1917, alleges the appointment and qualification of Edward McAtee as guardian of Mabel Mullen, now Eiddle, and Bessie Mullen, now Gabbert, in the year 1907, and the employment of plaintiff *470by the guardian on April 1st, 1911 to pump an oil well on a tract of land then belonging to his wards at $5.00 per month; that said guardian made a settlement of hi...
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Having received a substantial majority of the votes cast by the qualified electors for the office of sheriff of Gilmer County, at the election held and conducted November 2, 1920, and the certificate showing the result of such election as between himself and J. F. Vanhorn, his only opponent or rival candidate, and having taken the formal oath of office and executed the required bonds, J. H. Hall, ...
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Petitioner J. W. Harmon, having received a substantial majority of the votes cast by the electors of Ceredo District, Wayne County at the general election held on November 2, 1920 for the office of commissioner of the board of education for that district, as shown by the declaration and result of said election, for that office made by the county court of said county sitting as a board of canvasser...
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The opinion of the Court was delivered by The defendant' was tried at a special term of Court for Bamberg county in 1920, the indictment being for murder, *317 and convicted of manslaughter, and duly sentenced by Hon. Chas. Carroll Simms, special Judge, and appeals and by five exceptions alleges error. The first exception is: “The Court erred in forcing the defendant to trial in the absen...
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January 31, 1921. The opinion of the Court was delivered by This is an action on a policy of life insurance, and the appeal is from an order directing the jury to find a verdict in favor of the defendants. The allegations of the complaint, except the first, are as follows: *Page 320 "(2) That on or about the 15th day of December, 1918, J. Frank Murph, the husband and father of the plaintiffs here...
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January 31, 1921. The opinion of the Court was delivered by This is an action for alimony. The motion for counsel fee and temporary alimony was heard before Judge Mauldin, who refused the motion and ordered a reference to a special referee to report on the facts and the law. The case was tried before Judge DeVore, who affirmed the master's report and decided in favor of the defendant. The findings...
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December 22, 1919. The opinion of the Court was delivered by In his decree, his Honor, the County Judge, says: "The sole question is whether there was such misrepresentation or undue influence as would vitiate the deed to the defendant from his mother. * * * In the cause at bar we have in dispute, a deed from mother to son. Does that relationship, ipso facto, raise a presumption of undue influence...
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January 31, 1921. The following order was handed down There was a mistrial in this case, and the appeal is from an order of the Circuit Court overruling the defendant's plea of former jeopardy. *Page 326 The case involves a construction of theEighteenth Amendment of the United States Constitution. No argument was filed by the solicitor. As there has not been any final judgment, the ruling of his ...
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The opinion of the Court was delivered by This is an appeal from an order refusing to direct a verdict in favor of the plaintiff. The following statement appears in the record: “This action was commenced July 2, 1918, by appellant filing a summons and complaint in the Court of Common Pleas for Greenville county, the complaint alleging that plaintiff sold and delivered to defendant two dozen...
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1. The court did not err in refusing to grant an ad interim injunction. 2. The writ of error, as to all other exceptions, is premature, and no rulings are made thereon. Burkhalter v. Roach, 145 Ga. 834; Ar*31mor v. Stubbs, 150 Ga. 520 (104 S. E. 500); English v. Rosenkrantz, 150 Ga. 745. Under the peculiar facts of the ease, leave is granted to treat and consider the official copy of the bill of e...
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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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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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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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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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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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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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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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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. 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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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. 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. (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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(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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(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. 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. 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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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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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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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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(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. 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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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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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 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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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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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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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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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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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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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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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. 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 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. “ 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. 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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January 31, 1921. The opinion of the Court was delivered by In this appeal the only exception is as follows: "Because his Honor, the presiding Judge, erred, it is respectfully submitted, in striking out of defendant's alleged counterclaim the words and left the premises of defendant after destroying a well thereon and damaging the buildings, the error being that defendant was entitled to the benef...
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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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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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January 31, 1921. The opinion of the Court was delivered by Petitioner instituted proceedings in habeas corpus to obtain the custody of his infant son, six years of age, from Mrs. Sherman. He alleged that he was married to the *Page 372 respondent, Anna Belle Rose (who was formerly his wife, but subsequently divorced from him and married to another), and the child was born to them at Camden, S.C....
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January 31, 1921. The opinion of the Court was delivered by The following statement appears in the record: "This is an action for damages for the death of respondent's intestate, caused by an explosion of oil when she attempted to make a fire therewith, and which was purchased from the firm of Ligon Ledbetter, who had, in turn, purchased same from Petroleum Oil Company, as is alleged, and that he...
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January 31, 1921. The opinion of the Court was delivered by The following are the facts upon which it was agreed that this case should be heard: *Page 343 "This was an indictment for grand larceny as shown by a copy of the indictment set forth herein. The goods alleged to have been stolen by the defendants were set forth in the indictment to be the goods and chattels of R.W. McCreary Company, a p...
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January 31, 1921. The opinion of the Court was delivered by Plaintiff sued the city to recover damages for a personal injury sustained on December 25, 1917. While he was walking along one of the principal streets of the city, he was *Page 369 struck by a skyrocket, set off by some unknown person, and his left leg was broken. He alleges that the city council adopted an ordinance, which was of forc...
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January 31, 1921. *Page 350 The opinion of the Court was delivered by For the reasons therein stated, the judgment of the Circuit Court is affirmed. MR. JUSTICE GAGE did not participate....
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*350The opinion of the Court was delivered by Eor the reasons therein stated, the judgment' of the Circuit Court is affirmed. Mr. Justice Gage did not participate....
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January 31, 1921. The opinion of the Court was delivered by The complaint herein alleges that a package of merchandise was shipped by the Baltimore Bargain House of Baltimore, Md., to the plaintiff at Blackville, S.C. in July, 1915; that upon the arrival of said merchandise there was a shortage of $262.88. The answer of the defendant interposes the defense that all the plaintiff can recover, if an...
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January 31, 1921. The opinion of the Court was delivered by This is an action for the alleged failure on the part of the defendant, to deliver a certain package of clothing, consigned by the plaintiff from Blackville, S.C. to the Knickerbocker Clothing Company of New York City. The defendant, by way of defense, relied upon the receipt for the package, as limiting the amount of recovery to $50; the...
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January 31, 1921. The opinion of the Court was delivered by Plaintiff appeals from a judgment of nonsuit. He sued under the Federal Employers' Liability Act (U.S. Comp. St., secs. 8657-8665) to recover damages for personal injuries received by him on November 22, 1918, while employed in the service of defendant as a yard conductor at Spartanburg, S.C. He alleged that at the time of his injury he w...
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January 31, 1921. The opinion of the Court was delivered by Plaintiffs sued defendant for possession of an automobile, claiming title under a past-due chattel mortgage given them by R.E. Garrett for the purchase price thereof. The mortgage was dated and recorded April 4, 1919. Defendant denied the allegations of the complaint and set up the defense of estoppel, on the ground that plaintiffs had he...
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delivered the opinion of the court. This action was brought to recover the value of two boxes lost in interstate shipment, the contents and value of which are as follows: *208One leopard skin coat................$ 185.00 On beaver skin coat.................. • 400.00 One bear skin rug.................... 50.00 One skunk muff and stole... ............ 50.00 One black fox muff and stole... ........ ...
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after making the foregoing statement, delivered the following opinion of the court: The questions presented for our decision by the assignments of error in this case will be disposed of in their order as stated below. [1] 1. Did the Virginia employees liability act as contained in Acts 1912, p. 583, above copied, apply to the class of employees therein specified of a manufacturing corporation oper...
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after making the foregoing statement, delivered the following opinion of the court: The questions presented by the assignments of error, which are involved in the decision of the case will be passed upon in their order as stated below. [1] 1. Was the bond of the sureties for the cashier limited as to the duration of its obligation to any particular year or other period of the service of the cashie...
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TMs appeal is prosecuted from a decree of the circuit court of Summers county enjoining the defendant from using a road over the lands of the plaintiff, and cancelling a deed made to him purporting to convey an easement over plaintiff’s lands, as a cloud upon his title thereto. On the 29th of January, 1887, G. W. Ohattin was the owner of a tract of land lying in a bend of Greenbrier river in Summe...
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This appeal from a decree awarding a divorce from bed and board to a husband, on the ground of desertion by the wife, is prosecuted by the latter, upon the theory of lack of sufficient proof of the allegations of the bill. *535At the date of their marriage, May 2, 1900, the appellant was a widow and the mother of six living children, although somewhat younger than the appellee. At that time, she a...
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Of the three points of error relied on by plaintiff to reverse the judgment of nil capiat against it, the third, that the verdict was contrary to the written evidence and the admitted facts in the case, is the only point which we need consider on the motion for a new trial, denied by the trial court. The other points, which will be referred to lastly, involve supposed errors committed during the t...
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The decree under review on this appeal adjudicates forfeiture of the title of a certain lot conveyed to trustees for parsonage purposes on which a parsonage building was erected, for non-entry of the lot for taxation and non-payment of taxes thereon, for a period of five years and more; and, havng thus settled the principles of the cause, continued it for the taking of proof of the value of the pr...
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Denied the right to submit for the consideration of the jury impaneled to try the cause certain evidence offered by him, Donnally, plaintiff below, seeks reversal of the judgment rendered against him upon a verdict directed by the trial court. The action is trespass on the case for malicious prosecution or abuse of judicial process. The defendant, Fairmont Brewing Company, a corporation, upon a bi...
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Plaintiffs brought this -suit to recover damages to their real estate situate in the city of Pairmont resulting from the construction and operation of the ■ defendant’s railroad in the street in front of the same. Upon the trial of the ease, after the plaintiffs had offered ail of their evidence, the court, upon motion of the defendant, directed a verdict in its favor, and *550rendered judgment th...
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In each of the above entitled canses the plaintiff filed a bill for the purpose of enjoining and restraining the defendants from interfering with it in any way in the operation of certain gas wells drilled upon the lands of the defendants. The circuit court overruled the demurrer to the bills, and certified the questions arising thereon to this court for its decision. It appears that the defendant...
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These two cases are actions upon the same instrument — a joint and several penal bond with collateral condition, executed by defendants, Mack Manufacturing Company and United States Fidelity & Guaranty Company of Baltimore, Maryland, as principal and surety, respectively, to guarantee faithful performance by them of a contract to furnish paving bricks for the permanent improvement of designated pu...
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The plaintiff, Pardee & Curtin Lumber Co., presented its bill to the Circuit Court of Webster County on August 6, 1920, praying for an injunction against L. P. B. Rose., W. E. Gardner and T. W. Cain, members of the board of review and equalization, P. J. McGuire, clerk of said board, and H. F. Given, assessor, to restrain them from extending levies for taxation on its lands in that county; An inju...
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Plaintiff, an attorney at law residing in Marion County, in March 1914, instituted in the circuit court of that county his suit in equity upon foreign attachment against Antoinette Blair (nee Loller) Cecelia Bryan, widow of Weeden J. Bryan, and S. W. Loller, the father of Antoinette Blair and son-in-law of said Weeden J. Bryan and Cecelia Bryan, non-residents, residing in Pennsylvania, the object ...
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This is a suit in equity the object of which is to collect a sum of money claimed to be due to the plaintiff from one of the defendants, by virtue of a written contract. The Boyal Block Coal Co. owned and operated a coal mining lease on 1100 acres of land on Big Horse Creek in Boone County and had constructed and was operating a railroad track extending from the main line of the Horse Creek-Branch...
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Appellant J. E. Maddy, plaintiff below, seeks reversal of a decree of the circuit court of Summers County dismissing his bill praying partition of three tracts of land in which he claims a joint undivided interest. The basis of his claim is a deed executed by his father, E. J. Maddy, November 20, 1893, the granting clause of which purports to convey the tracts in question to Cynthia A. Maddy, the ...
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In an action begun before a justice, and tried before the *590circuit ."-court> upon 'appeal, .plaintiff obtained-a-verdict- and judgment-for ¡$150.00, interest and costs,-the judgment b'eforé' the justice .being .$168.49. " ■ :- The cause of action was .the. alleged negligence ;of defendant' in the delivery of.- certain merchandise ‘shipped to him from certain points and consigned to • him at a s...
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Plaintiff in error, defendant below, by this writ challenges the regularity of the proceedings terminating in the judgment rendered against him in the circuit court upon his appeal from a like judgment of a justice before whom the action was brought. The irregularities urged are: (1) Lack-of the usual, though informal, pleadings, oral or written, either before the justice or in the circuit court; ...
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This appeal brings up for review a decree of the circuit court of Barbour county, in favor of the plaintiffs, for the amount paid by them for stock which they purchased in the Hales Mining and Milling Company, at the solicitation of the defendant. *627It appears that in the month of September, 1911, the defendant, being interested in the Hales Mining & Milling Company, a corporation of the State o...
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The decree complained of on this appeal was entered upon a petition filed in a suit in which an absolute divorce of the parties to it had been pronounced more than two years before the decree under review was entered. It awards the custody of a female child of the parties to the mother. By a motion to quash the summons and a demurrer to the petition on which process' had issued and been served as ...
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Action for the balance alleged to be due the plaintiff upon the construction of the defendant's residence, near Plymouth, N.C. There was a nonsuit, and plaintiff appealed. The plaintiff had proceeded with the work until his funds were exhausted, when he informed the defendant that he would be unable to complete it unless the latter would pay him the additional sum of twelve hundred dollars, which ...
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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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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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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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The judgment under review on this writ of error was rendered in an action of assumpsit, for contribution; and the defense *610was, in substance, payment of the secured debt by the plaintiff, out of property of the principal debtor. If there was such payment it was so involved in indirectness and beclouded by uncertainty, as to give rise to tire controversy culminating in this litigation. The princ...
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W. H. Westfall, Guy R. Moats, R. R. Hall, W. W. Lawrence, J. G. Cooper, Gilbert Hoyden and Daniel Starr, claiming to have been legally elected as members of the common council of the town of Harrisville, a municipality incorporated under ch. 47, Code, 1918, Ritchie County, at a municipal election therein held on the 1st Tuesday in January, 1921; W. H. Westfall as mayor, Guy R. Moats as recorder, a...
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The case is in this court by certiorari to the Court of Appeals. That court made the following rulings : “ Smith, J. 1. A party who is dissatisfied with the award in condemnation proceedings which have been instituted to assess the damages to private property taken for public use, and who desires to appeal from the decision of the assessors to the superior court, is not required to give bond for t...
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1. “ County authorities may, without being said to create a debt within the meaning of the constitution, contract for the building of a court-house to be paid for out of available funds in the treasury, or with the proceeds of taxes that have been or may lawfully be levied during the year in which the contract is made.” Manly Building Co. v. Newton, 114 Ga. 245 (40 S. E. 274). (a) It appears from ...
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1. Under the Civil Code (1910), § 4169, “Adverse possession of lands, under written evidence of title, for seven years, shall give a like title by prescription. But if such written title be forged or fraudulent, and notice thereof be brought home to the claimant before or at the time of the commencement of his possession, no prescription can be based thereon.” 2. Under the Civil Code (1910), § 417...
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Under the facts of this case it was error for the court to refuse to enjoin the county authorities from proceeding to condemn the land, there having been no compliance with sections 640 et seep Civil Code. Warren County v. Todd, 150 Ga. 690 (104 S. E. 906). Judgment reversed. All the Justices concur. K. S. Anderson and Orrin Roberts, for plaintiff. Williford & Lambert, for defendants....
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(After stating the foregoing facts.) 1. It appears that none of the legatees or devisees of W. T. Maynard were made parties to the petition, except the testator’s daughter, Mrs. Zellner, her children, the children of Mrs. Amanda Lawson (another daughter of the testator) — Walter Lawson and W. T. Lawson, and W. T. Maynard. None of the defendants demurred to the petition, except Mrs. Zellner and her...
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1. Where for the purpose of securing a debt one conveys land to another by security deed, the deed conveys the legal title and leaves the grantor- no interest in the land which can be subjected to levy and sale by a creditor whose judgment was obtained after the deed was executed. Virginia-Carolina Chemical Co. V. Williams, 146 Ga. 482 (91 S. E. 543). The sale of land under-a fi. fa. against the h...
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This is an aetion to recover land, wherein there was a verdict for the plaintiff, and the defendant’s motion for a new trial was overruled. He excepted. 1. The ground of the motion complaining that the verdict covered more land than the evidence authorized was cured by the plaintiff voluntarily amending the verdict so as to eliminate therefrom' the excessive recovery. 2. A ground of a motion for n...
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By the will of A. W. Mitchell certain real estate was devised to a trustee for the benefit of Charles B. Mitchell, testator’s son, during his life, and, in the event of his dying childless, remainders were created in favor of certain other children and representatives of the children of the testator. After the death of Charles B. Mitchell, the Bridge children, the representatives of a child of the...
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This case comes from the Court of Appeals on writ of certiorari, and, as stated by that court, “was a suit on a policy of . life insurance for the recovery of the disputed double indemnity provided for under one of its clauses, and which was to be paid in all cases where it should be shown that the death of the assured resulted from ‘ bodily injury sustained and effected directly through external,...
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After careful consideration of the record in the case, tho opinion of the Court of Appeals, and the authorities cited therein as well as those cited in the briefs of counsel, this court is of the opinion that the judgment of the Court of Appeals should be affirmed. .Judgment affirmed. All the Justices concur. ...
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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. 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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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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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. 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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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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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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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. “ 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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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.) 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. 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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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. 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. 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. 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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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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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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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. 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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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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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. 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. 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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This was a proceeding to determine the true location of the boundary line between the lands of plaintiff and defendant. The exceptions and assignments of error relate entirely to the admission and exclusion of evidence. No new question is presented which requires discussion. "We have carefully examined the record, and duly considered the exceptions, and find no error of which the plaintiff can ...
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This is an appeal from an order on a petition for the establishment of a drainage district. The petition having been filed on the hearing before the clerk, the petition was offered in evidence, together with other testimony on the part of the petitioners tending to show that said petition had been signed by a majority of the resident landowners in the proposed district, and by the owners of three-...
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The cause was before us at the preceding term, and a certiorari was ordered for a further statement of case on appeal. The writ having been complied with, it appears that plaintiff instituted this action returnable to October Term of the Superior Court of 1917, against the National Auction Company, S. A. Eure, its president, and W. T. Burton, trading as Burton Brothers. That personal service of su...
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The defendant was a resident of Maryland, and came to Elizabeth City on 11 February, 1920, to prosecute an action brought by him against Winder, and also as witness in said case, and it is found as a fact that he came for no other purpose; that a few minutes after the case against Winder was determined, on said 11 February, 1920, the plaintiff in this action (the defendant in that) had a warrant o...
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This action was brought under sec. 1589 of the Revisal, now sec. 1743, Consolidated Statutes, and involves the ownership of three tracts of land situate in the counties of Pasquotank, Perquimans, and Gates. The case is submitted on facts agreed, from which it appears plaintiff claims title under three independent sources, as follows: 1. The first originates with four grants, issued 27 October, 178...
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upon the above statement, delivered the following opinion for the Court: The refusal of the plaintiff’s motion for judgment on the pleadings was manifestly correct. The plaintiff seeks to recover of the defendant bank the amount of the deposit made by her intestate, and the other defendant was made a party because she claimed an interest in the controversy, as her intestate had asserted ownership ...
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There are 41 assignments of error in the record. Five of them relate to the evidence. The remaining assignments are directed to the charge of the judge. It is impossible to consider all of the assignments in an opinion of reasonable length. We have carefully examined them, and can find no substantial error. The charge of the judge is full and clear, and based upon the principles of law as laid dow...
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The evidence in behalf of the State is much stronger than in S. v.Waller, 80 N.C. 401, the case relied on by the defendants, and is ample to sustain the verdict and the cross-examination of the defendant Whitman shows that the jury made no mistake. We see no reason for disturbing the verdict. No error....
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Upon an examination of the evidence we are of opinion that the motion to nonsuit was properly granted. Affirmed. *Page 665 ...
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Tbe Court is of opinion, upon careful examination of all tbe evidence in tbis case, tbat tbe injury sustained by tbe plaintiff resulted from an extraordinary and unexpected event, wbieb could not bave reasonably been foreseen or anticipated, and tbat there is no evidence of negligence upon tbe part of tbe defendant. Affirmed. ...
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December 20, 1920. The opinion of the Court was delivered by This is an action brought against defendants, Brunson and Peace, November 17, 1913, to recover $445.46. These defendants served notice on Thomas Harrison to come in and defend the title. Within due time he answered denying the allegations of the complaint. An order of reference was agreed upon and the case was heard by the master, who re...
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January 31, 1921. The opinion of the Court was delivered by This is an action for damages alleged to have been sustained by the plaintiff through the wrongful acts of the defendant, on account of the undermining of his house and lot by flood waters of the Savannah River, which broke through the railroad embankment of the defendant, ranging in height from 2 to 6 feet, and about fifty feet in front ...
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October 31, 1920. The opinion of the Court was delivered by The action is upon a negotiable note for $1,250, dated July 6, 1914, due on demand and made by the defendant to *Page 383 the plaintiff, and indorsed by D. Sam Cox. Let the form of the note be reported. The verdict was for the plaintiff. The defendant has made 15 exceptions which cover 12 pages of the case. Such diffuseness is not to be ...
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The decree below, pronounced October 27, 1-919, denied plaintiff specific execution of his contract with the defendant Dolly Thomas for the sale and purchase of three tracts of land in Ritchie County, aggregating about four hundred acres, dismissed his bill and ordered defendants Okey B. Nutter and the First National Bank of Pennsboro to deliver to defendant Thomas the deed in their possession exe...
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• The Circuit Court,of Webster County has certified to this *479court, for review, certain questions arising upon new pleadings died in the consolidated chancery causes instituted for enforcement of judgment lien$ on the real estate of the late Col. John T. MeG-raw, an appeal in which was passed upon here, with the result indicated in the report of the decision, found in 85 W. Va. 298, 101 S. E. 4...
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The two-fold purpose sought to be consummated by the plaintiffs 'in this suit, and granted by the decree reviewed for error, is the cancellation of a deed dated June 4, 1.917, made by B. F. McGhee and wife, Mildred C., to C. J. Henderson, the husband of their daughter, conveying to him all their right, title and interest in and to the minerals underlying a tract of 115 acres of land in Lincoln Cou...
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On the 15th day of December, 1915, the plaintiff instituted his suit in chancery in the circuit court of Monongalia county upon a claim for a balance alleged to be due him upon a contract between him and the defendants, and as a basis of jurisdiction sued out -at the same time an attachment against the defendants, they being non-residents of the state, which attachment was levied upon certain real...
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This writ of error brings here for review an order setting aside a verdict for $3,000.00, returned in an action for a personal *719injury, based upon the theory of an unlawful employment of the plaintiff, an infant under fourteen years of age, and consequent denial of the benefit of the Workmen’s Compensation Act, to the defendant, a coal mining corporation and a subscriber and contributor to the ...
Views: 10
An injunction' was sought by the Parker Paint & Wall Paper Co. against Local Union No. 813 and others to prevent defendants from interfering with the orderly conduct of plaintiff’s business, to prevent picketing of complainant’s place of business and its employees, or terrorizing them, or persons with *633whom plaintiff has contracts, or in any way attempting to. cause or influence other persons w...
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The Wilsonburg Methodist Episcopal Church, Adamston Charge of the Quarterly Conference, by J. B. Workman, District Superintendent, filed a petition in the circuit court of Harrison county asking that court to confirm the action of the district conference in removing Peter W. Ash as one of the trustees of .said Wilsonburg Methodist Episcopal Church. A demurrer was filed by Ash to the petition which...
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The decree reviewed for error denied the relief prayed for, *644dismissed plaintiffs bill upon demurrer, after his refusal to avail himself of the leave granted to amend, and the cause is here for the correction of the error so committed, if any be found in the record. The purpose of the suit is the cancellation of a tax deed for land sold at a sheriff’s sale for taxes assessed against it in the n...
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The nature of this controversy and the character of the issues ■made in the three consolidated suits in which the decrees complained of on this appeal were entered are revealed by the statement thereof in the opinion filed in Arnold v. Myli/as, 85 W. Va. 123 and 101 S. E. 78, dismissing an appeal entered in the same causes, as having been improvidently allowed. This appeal brings up the decree fro...
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This writ of error brings up for review a judgment of the circuit court of Cabell county in favor of the plaintiff for damages for breach of a contract for the sale of a house and lot situate in the city of Huntington. It appears that the defendants I. S. Hyman and Mrs. W. B'. Inman were partners in the real estate business under the name of Huntington Realty Company. This firm had for sale a hous...
Views: 0

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