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ga/1067617.json

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+"{\"id\": \"1067617\", \"name\": \"CENTRAL GEORGIA POWER COMPANY v. POPE\", \"name_abbreviation\": \"Central Georgia Power Co. v. Pope\", \"decision_date\": \"1915-09-22\", \"docket_number\": \"\", \"first_page\": \"130\", \"last_page\": \"135\", \"citations\": \"144 Ga. 130\", \"volume\": \"144\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T22:54:30.107719+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur, except Fish, C. J., absent.\", \"parties\": \"CENTRAL GEORGIA POWER COMPANY v. POPE.\", \"head_matter\": \"CENTRAL GEORGIA POWER COMPANY v. POPE.\\n1. The question raised as to the disqualification of certain jurors because of relationship to plaintiffs in other eases against the same defendant is controlled by Central Georgia Power Co. v. Nolen, 143 Ga. 776 (85 S. E. 945).\\n2. There was no evidence authorizing a charge to the effect that a release from damages, contained in a deed from the plaintiff to the defendant, did not release the latter from damages arising from criminal' negligence.\\n(a) The charge which left to the jury to determine whether the damages involved were reasonably in the contemplation of the parties when the conveyance and release were executed by the plaintiff to the defendant was not altogether appropriate or adapted to the present case.\\n3. Prior to the construction of its dam or reservoir, a hydroelectric company, having the right of eminent domain, obtained from the owners of certain lots a deed to portions thereof, for the purpose of making a reservoir and backing water by means of its dam. In the deed, after describing the property conveyed, and referring to the easements, rights, members, and appurtenances thereunto belonging, appeared the following words: \\u201cThe said party of the second part, its successors and assigns, being hereby released and discharged by the said party of the first part, their heirs, personal representatives, and assigns, from any and all action's and rights of action, rights to or claims for damages of any nature, resulting from the construction, maintenance, or operation of said dam or power-plant and the consequent changes in the height of the water.\\u201d Held, that such conveyance released the defendant from all damages resulting from the proper and non-negligent construction, maintenance, or operation of the dam or power-plant; but did not operate as a release of damages resulting from a negligent construction and maintenance thereof.\\nSeptember 22, 1915.\\nAction for damages. Before Judge Beid. Newton superior court. August 8, 1914.\\nW. C. Pope brought suit against the Central Georgia Power Company, seeking to recover damages alleged to have arisen from a nuisance created by the backing of water caused by the dam of the defendant. The petition alleged that the defendant negligently and improp\\u00e9rly erected its dam and constructed its plant, in not acquiring, by condemnation or otherwise, sufficient land to enable it to carry on its business so as not to injure the plaintiff\\u2019s land; and in that the defendant did not clean off the reservoir and remove therefrom the wood and other substances before backing water over it, causing the water to collect in lagoons and low places and to become stagnant and infested with disease-bearing mosquitoes, and to fill the air with noxious vapors and gases. Diminution in market value and in rental value of the plaintiff\\u2019s property, loss of rents and crops during certain years, and rendering it inconvenient as a habitation, were alleged. By amendment it was alleged that the defendant acted maliciously with the specific intent and purpose of injuring the plaintiff. The jury found for the plaintiff $346.42. The defendant moved for a new trial, which was denied, and it excepted.\\nHatcher & Smith and Greene F. Johnson, for plaintiff in error.\\nRogers & Knox, contra.\", \"word_count\": \"1933\", \"char_count\": \"11434\", \"text\": \"Lumpkin, J.\\n(After stating the foregoing facts.) This case was before the Supreme Court on exceptions to the ruling of the trial court upon a demurrer. 141 Ga. 186 (80 S. E. 642). Several of the grounds of the motion for a new trial were expressly abandoned in the brief. Some of the others were palpably without merit, and require no discussion.\\nThe contention that certain jurors were disqualified, because of relationship to plaintiffs in other cases against the defendant, is controlled by the decision in Central Georgia Power Co. v. Nolen, 143 Ga. 776 (85 S. E. 945). The proceeding was not a challenge of certain jurors on the ground of bias, but an effort to apply, as a legal test of disqualification, the relationship within the fourth degree of any juror to any plaintiff in the other cases pending.\\nThe defendant introduced a conveyance of parts of certain tracts of land by the plaintiff and others to the defendant, which contained the following clause of release, after the description of the land conveyed, and a reference to its easements, rights, members, and appurtenances: \\\"The said party of the second part, its successors and assigns, being hereby released and discharged by the said party of the first part, their heirs, personal representatives, and assigns, from any and all actions and rights of action, rights to or claims for damages of any nature, resulting from the construction, maintenance, or operation of said dam or power-plant and the consequent changes in the height of the water.\\\" The .court charged the jury that no release would he binding on a party so far as damages arising from criminal negligence of the other party were concerned, and defined criminal negligence to be a dereliction of duty under circumstances showing an actual intent to injure. There was no evidence of criminal negligence on the part of the defendant, and this charge was unwarranted and injurious to the defendant.\\nThe defendant company was one having the power of eminent domain. Had it acquired property from the plaintiff for the purpose of constructing its reservoir and operating its works, the damages awarded would have included such as arose from .a proper and non-negligent construction and operation; but would not have prevented a recovery for a negligent construction or operation. Central Georgia Power Co. v. Mays, 137 Ga. 120, 124 (72 S. E. 900).\\nIn 2 Lewis on Eminent Domain (3d ed.), \\u00a7 710, it is said: \\\"When part of a tract is taken, the damages are not limited to such as result from the, mere severance of title caused by the taking, but include damages caused by the use of the property for the .purpose for which the condemnation is made. Such use embraces the construction of the work or improvement, and the maintenance, use, and operation of the same. Thus in a railroad case it was held proper to consider 'all incidental loss, inconvenience, and damages, present and prospective, which may be known or may reasonably be expected to result from the construction and operation of the road in a legal and proper manner.' \\\" In section 714 it is said: \\\"Damages are to be assessed on the basis that the works will be constructed and operated in a skillful and proper manner. Thus in case of railroads it must be assumed that they will construct necessary and proper culverts, and that, in bridging streams, they will make waterways of sufficient capacity and so place the piers and abutments as not to do any unnecessary injury to the adjacent lands. All damages resulting from neglect in construction or from negligence in the use of the property or works may be recovered by appropriate actions by the parties damnified when-such damages occur, and nothing should be allowed on the theory that such negligence may happen.\\\" In section 821 it is said: \\\"The authorities undoubtedly hold that the assessment of damages will be presumed to include all damages which arise from constructing the works in a reasonable and proper manner, having regard to the efficiency of the works on the one hand and the interest of the landowner on the other. Where a subsequent claim for damages is made, arising from the construction of works, the question will be whether the works have been constructed in a proper manner, and whether the damage necessarily results from the works as so constructed. If these questions are answered in the affirmative, then the damages complained of will be presumed to have been considered in estimating the damages, and no further recovery can be had. If they are answered in the negative, then a recovery can be had in an appropriate common-law action.\\\" In this section possible negligent operation is not considered. Numerous authorities are cited under the sections quoted. See also \\u00a7 829; Missouri &c. Ry Co. v. Haines, 10 Kans. 439; Neilson v. Chicago &c. Ry. Co. 58 Wis. 516 (17 N. W. 310); Bungenstock v. Nishnabotna Drainage District, 163 Mo. 198 (64 S. W. 149). The author above mentioned urges, that, even in the absence of express constitutional or statutory provision on the subject of what damages are to be considered as included in the award, the decisions of various courts have been too broad. \\u00a7 82Q.\\nNo ruling was here made in regard to the provision of our constitution to the effect that private property shall not be taken or damaged without just and adequate compensation being first paid ; and no discussion thereof is required.\\nWhere, instead of condemning the land belonging to the plaintiff and others, the defendant obtained from them a conveyance con taining the words-of release above quoted, such words will not be construed as covering improper and negligent construction on the part of the defendant, or so as to release it from damages arising therefrom. The conveyance was made before completion of the work, or the doing of the damage, and does not fall within the reasoning of those decisions which dealt with a completed structure and existing status. Freemont &c. R. Co. v. Harlin, 50 Neb. 698 (70 N. W. 263, 36 L. R. A. 417, 61 Am. St. R. 578); Jungblum v. Minneapolis &c. R. Co., 70 Minn. 153 (72 N. W. 971); Brown v. Pine Creek Ry. Co., 183 Penn. St. 38 (38 Atl. 401). The decision in Seaboard Air-Line Railway v. McMurrain, 132 Ga. 181 (63 S. E. 1098), does not conflict with what is said above.\\n, It is true that general words are employed in the release, but they must be considered in connection with the other parts of the conveyance, which is to be looked to as a whole. There is nothing .to show an intention to include a release from damages arising from negligence; and the construction above stated is the proper one to be placed upon the instrument.\\nA release is to be construed according to the intent of the parties. Surrounding circumstances are admissible to explain an ambiguity. General words of release accompanying particular recitals are to be construed in connection with such recitals, so as to give effect to the intent exhibited by the instrument as a whole. See, in this connection, 24 Am. & Eng. Enc. Law (2d ed.), 290-294, and citations. Sometimes the expression has been used that certain damages were or were not in contemplation of the parties; and the trial court in this case submitted to the jury to determine whether the damages claimed in the present suit were or were not in the contemplation of the parties when the release was executed. We do not think that this form of instruction was well adapted to the case, or an apt method of expression. Parties may execute an instrument which will-release all claims of every character, although they may hot have in special contemplation a particular claim or item of damages. But under the construction which has been given above to the words of release included in the conveyance here involved, it is not necessary to discuss further what might be the best mode of submitting to the jury the question of intent in a proper case.\\nFrom what has been said a reversal of the judgment must be granted. As a new trial will be had, the evidence introduced on the last trial need not be discussed.\\nJudgment reversed.\\nAll the Justices concur, except Fish, C. J., absent.\"}"

ga/1067773.json

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+"{\"id\": \"1067773\", \"name\": \"WILSON v. THE STATE\", \"name_abbreviation\": \"Wilson v. State\", \"decision_date\": \"2001-11-30\", \"docket_number\": \"S01A1315\", \"first_page\": \"637\", \"last_page\": \"640\", \"citations\": \"274 Ga. 637\", \"volume\": \"274\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T17:21:49.649227+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"WILSON v. THE STATE.\", \"head_matter\": \"S01A1315.\\nWILSON v. THE STATE.\\n(555 SE2d 725)\", \"word_count\": \"1301\", \"char_count\": \"7858\", \"text\": \"Hunstein, Justice.\\nAppellant Keith Wilson was convicted of the malice murder of Ashante McRdne, two counts of aggravated assault on other individuals, and possession of a firearm during his commission of the crimes. Wilson was sentenced to life imprisonment for murder, three consecutive five-year terms for the firearms offenses, and two consecutive twenty-year terms on the aggravated assault offenses. The trial court denied Wilson's motion for new trial and he appeals.\\n1. The evidence presented at trial shows that on the day of the crimes Wilson had an argument with one of the victims, Keith McClain. Later, while McClain and others sat outside an apartment, Wilson and a friend, Malcolm Reeves, positioned themselves in an alleyway across the street. Wilson yelled to the victims that somebody was going to die. Shortly thereafter, Wilson withdrew a weapon and began shooting at the victims. McKine died as a result of a bullet which passed through his chest. Immediately after the gunshots were fired, Wilson ran a few streets away where he was seen giving \\\"high fives\\\" to a group of friends and boasting that he killed someone.\\nConstrued in the light most favorable to the verdict, we find the evidence introduced at trial was sufficient to enable a rational trier of fact to find Wilson guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).\\n2. We reject Wilson's contention that the State failed to present sufficient evidence corroborating Reeves' testimony. Even assuming that Reeves' testimony required corroboration, only slight evidence is required and the sufficiency of the corroboration is a question for the jury. Klinect v. State, 269 Ga. 570 (1) (501 SE2d 810) (1998). Through the testimony of other witnesses, the State corroborated Reeves' testimony that Wilson and McClain had an altercation earlier in the day, Reeves and Wilson were standing in the alley just before the shooting occurred, Wilson made threatening statements to McClain and his friends from the alley, the shots came from the alley, both Reeves and Wilson ran from the alley immediately after the shooting, and Wilson was seen giving \\\"high fives\\\" and boasting that he \\\"got one\\\" minutes after the shooting. This evidence was sufficient to corroborate Reeves' testimony. See id.\\n3. Prior to trial the judge, prosecutor, and defense counsel participated in an in-chambers conference during which the parties outlined their cases and estimated the length of trial. The State also brought and the court ruled upon an oral motion in limine to exclude from trial any evidence of the crimes being drug-related or that McKine had drugs on his person at the time of his death. Wilson con tends his absence from the conference violated his constitutional right to be present at all critical stages of the proceedings against him. We disagree.\\nIt is well-established that a defendant has a constitutional right to be present at every stage of the proceedings materially affecting his case, Ga. Const. Art. I, Sec. I, Par. XII, and that the right to be present may be waived if the defendant later acquiesces in the proceedings occurring in his absence. Holsey v. State, 271 Ga. 856, 860-861 (5) (524 SE2d 473) (1999); Hudson v. State, 250 Ga. 479, 483-484 (3) (a) (299 SE2d 531) (1983); State v. Phillips, 247 Ga. 246, 248 (1) (B) (275 SE2d 323) (1981). In this case, it is undisputed that Wilson was not present during the in-chambers conference. The record affirmatively establishes, however, that Wilson was present on at least three occasions when the issue of the State's motion in limine and the trial court's ruling on the motion was raised during trial and discussed at length by all parties. On each such occasion, Wilson's counsel made no objection to Wilson's absence from the in-chambers conference and Wilson remained silent. Accordingly, we find that under the circumstances of this case Wilson acquiesced in the proceedings which occurred during the in-chambers conference in his absence. See Holsey, supra; Phillips, supra.\\n4. The trial court did not err in granting the State's motion to exclude speculative defense evidence suggesting that the crimes were drug-related or that the victim was in possession of drugs at the time he was killed. See Wayne v. State, 269 Ga. 36 (5) (495 SE2d 34) (1998).\\n5. Wilson was arrested several days after the shooting when he was discovered hiding under a house by an officer searching for a suspect in an unrelated crime and the officer recognized Wilson as the suspect wanted for McKine's murder. The arresting officer testified to the circumstances of Wilson's arrest at trial and Wilson contends the admission of this testimony impermissibly placed his character in issue. Even assuming the admission of the arresting officer's testimony was error, we conclude that the error was harmless given the overwhelming evidence of Wilson's guilt and the fact that such evidence did not establish the commission of another crime. See Benford v. State, 272 Ga. 348 (3) (528 SE2d 795) (2000).\\n6. We reject Wilson's contention that there was a fatal variance between the State's allegation that he shot the aggravated assault victims and the evidence that he shot at those victims. Wilson was sufficiently informed of the charges against him so as to form a defense, and there was no danger that he could be prosecuted again for the same offenses. See Hampton v. State, 272 Ga. 284, 286 (3) (527 SE2d 872) (2000); Battles v. State, 262 Ga. 415 (5) (420 SE2d 303) (1992).\\nDecided November 30, 2001\\nReconsideration denied December 14, 2001.\\nJackson & Schiavone, Steven L. Sparger, Charles C. Grile, for appellant.\\nSpencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Wylencia H. Monroe, Assistant Attorney General, for appellee.\\n7. The trial court did not err in refusing to charge the jury on the legal issues of immunity and leniency as there was no evidence to support Wilson's assertion that Reeves testified in exchange for immunity or leniency. See Monsalve v. State, 271 Ga. 523 (3) (519 SE2d 915) (1999).\\n8. The trial court did not err in charging the jury on parties to a crime. The State presented evidence from which the jury was authorized to find that Wilson committed the crimes charged as either a direct participant or as a party to the crimes. \\\" 'Where there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue. (Cits.)' [Cit.]\\\" Rhodes v. State, 271 Ga. 481, 483 (3) (521 SE2d 579) (1999).\\nJudgment affirmed.\\nAll the Justices concur.\\nThe crimes occurred on August 25,1999. Wilson was indicted by the Chatham County grand jury on charges of malice murder, felony murder, five counts of aggravated assault and seven counts of possession of a firearm during the commission of a felony. He was tried before a jury on September 13-15, 2000. At the close of the State's case, the trial court dismissed two counts of aggravated assault and two related possession counts. Wilson was found guilty of the remaining counts and sentenced to fife imprisonment for malice murder, three consecutive five-year terms for the possession charges, and two consecutive twenty-year terms for the aggravated assaults. The charges of felony murder, aggravated assault upon McKine, and related possession charges were vacated as a matter of law. A motion for new trial was filed on October 9, 2000, amended on January 25, 2001, and denied on March 15, 2001. Wilson filed a notice of appeal on April 3, 2001. The appeal was docketed in this court on May 29, 2001 and orally argued on September 17, 2001.\"}"

ga/1082422.json

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+"{\"id\": \"1082422\", \"name\": \"VADA NAVAL STORES COMPANY v. SAPP\", \"name_abbreviation\": \"Vada Naval Stores Co. v. Sapp\", \"decision_date\": \"1919-01-15\", \"docket_number\": \"No. 987\", \"first_page\": \"677\", \"last_page\": \"684\", \"citations\": \"148 Ga. 677\", \"volume\": \"148\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T22:49:13.269190+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"VADA NAVAL STORES COMPANY v. SAPP.\", \"head_matter\": \"VADA NAVAL STORES COMPANY v. SAPP.\\n1. The petition as amended set forth a cause of action, and there was no error in overruling the general and special demurrers.\\n2. The vendee of a tenant who has an apparent legal title and from whom the purchase was made, with or without notice of the tenancy, can not dispute the title of the landlord, in an action of complaint for land, until he has restored the possession to the latter.\\n3. Without regard to the special assignments of error upon the admissibility of testimony and upon pertain instructions given by the court to the jury, the verdict for the plaintiff was demanded, and the court did not err in overruling the motion for new trial.\\nNo. 987.\\nJanuary 15, 1919.\\nComplaint for land. Before Judge Worrill. Decatur superior court. May 4,- 1918.\\nThe following is a condensed statement of the facts necessary to an understanding of the rulings made in this case: In July, 1904, H. H. Sapp purchased from the Troxwell heirs the west half of lot of land No. 382, containing 125 acres, more or less, in the 16th district of Decatur county. The deed was not recorded. Shortly after his purchase Sapp conveyed the land, for a valuable consideration, to Mrs. H. H. Sapp, his wife. Thereafter she leased the land to him, to be used as a location, as long as needed, for the purpose of manufacturing turpentine. The lease did not specify any particular part of the land, nor restrict the lessee to the use of any particular number of acres. In November, 1904, H. H. Sapp sold a half interest in the turpentine location to J. L. Peebles, executing to him a lease which was recorded on November 9, 1904, containing the following recital: \\\"The land on which said still is located belongs to Mrs. H. H. Sapp; the said H. H. Sapp hereby conveys to said Peebles a lease which he holds to said land to be used as a location as long as it is needed for the purpose of manufacturing turpentine.\\u201d Thereafter Sapp sold his remaining half interest in the turpentine location to M. A. Bethune; and the lease from Sapp to Bethune, also recorded on November 9, 1904, contained in substance the same recital. Peebles and Bethune were, at the time, members of the copartnership of J. L. Peebles & Company, or shortly thereafter formed said copartnership, of which D. A. Autry also was a member. In 1905 Emma H. \\\"Wright and Columbia H. Lewis, two of the Troxwell heirs, conveyed said west half of lot of land to J. E. Harrell by deed recorded on August 10, 1905. Harrell conveyed the land to J. L. Peebles & Company on September 6, 1905, by deed recorded on the following day. At or about the time of this last purchase Peebles & Company notified Mrs. Sapp, by letter, that they no longer held under herj but that they were the owners of the true title to the half lot of land upon which the still site was located. Neither Mr. nor Mrs. Sapp, according to their contentions, received this notice. Peebles & Company did not surrender or offer to surrender the possession of the still site or any part of the land to Mrs. Sapp. On October 25, 1906, Bethune conveyed to his copartners his interest in the co-partnership and turpentine site; and on January 18, 1910, by deed recorded on March 12, 1910, the copartnership conveyed the property to D. A. Autry & Son. '\\nOn February 14, 1911, Mrs. Sapp filed suit against Autry & Son, alleging that she was the owner in fee simple of said west half of said lot of land and had a perfect paper title thereto; that the defendants were in possession of the timber on said land and were turpentining it under some pretended claim of right, to her injury and damage; and she prayed for injunction against the defendants, for damages in a sum stated, and for process. By amendment she alleged, in substance, that Autry & Son were her tenants; that they procured possession of the premises in the manner hereinbefore detailed, and, after the purchase from Harrell, attempted to set up an adverse claim of title, in disregard of plaintiff\\u2019s title; that the turpentine site was located on said half lot of land, that the defendants had the right to use the same, so long as needed, for the purpose of manufacturing turpentine, but that the boxing of the timber on the land was a trespass; and that inasmuch as defendants occupied the relation of tenants to the plaintiff, the trespass was wilful. She therefore prayed for damages in an increased amount. The defendants filed an answer in which they denied the trespass, and set up title in themselves to the half lot of land. On May 13, 1913, the plaintiff recovered a verdict against Autry & Son in the sum of sixty-five dollars. In 1911, after the filing of the suit aforesaid and before its termination, Autry & Son sold the half lot in dispute to the Yada Naval Stores Company, a copartnership, and delivered the possession to them. The purchase was negotiated by one Ball, a member of said copartnership. Mrs. Sapp filed suit to the May term, 1914, of the superior court, against the Yada Naval Stores Company, for the recovery of the land with mesne profits. In addition to the foregoing, she alleged that Ball had actual notice and knowledge of the suit against Autry & Son at the time of the purchase, and that whatever claim of title \\u201cdefendants had to said land is void as against plaintiff.\\u201d Before the trial she amended by praying that \\u201cshe recover possession of the property described in the petition, and that judgment be rendered directing the defendants to restore said property to the possession of the plaintiff,\\u201d and that she recover rents only from the filing of the petition. The defendants demurred generally and specially. The verdict was for the plaintiff for the premises, and one hundred dollars rents. The defendants filed a motion for new trial, which was overruled, and they excepted to that ruling, and to the overruling of the demurrer.\\nM. B. O\\u2019Neal, and:Hartsfield & Conger, for plaintiffs in error.\\nT. S. Hawes, contra.\", \"word_count\": \"3163\", \"char_count\": \"17679\", \"text\": \"George, J.\\n(After stating the foregoing facts.) The petition set forth a cause of action, and the court did not err in overruling the general demurrer: In so far as any of thq groiinds of special demurrer were meritorious, they were fully met by timely amendment. In our opinion the verdict in favor of the plaintiff in the court below for the premises in dispute was demanded by the evidence. The special assignments of error,' complaining of rulings of the court upon the admissibility of evidence and of instructions by the court to the jury, do not relate to the question of mesne profits; or if they do relate to that issue, no reason appears from any of them why the verdict for mesne profits should be disturbed.\\nThe relation of landlord and tenant existed between Mrs. Sapp and her husband, H. H. Sapp, as well as those holding the possession of the premises under him. In the assignment of his lease to Peebles & Company, or to Peebles and Bethune, it was recited that Mrs. Sapp was the owner of the half lot of land in controversy, but that the assignees of Sapp should have the right to use the land so long as needed for the purpose of manufacturing turpentine. The elder Autry was a member of the firm of Peebles & Company, and his possession of the premises was acquired with full knowledge of the tenancy of Sapp and of Peebles & Company. The relation of landlord and tenant, therefore, existed between Mrs. Sapp and Autry & Son. Autry & Son sold the land in controversy to the Yada Naval Stores Company. The evidence in the record does not require a finding that the Vada Naval Stores Company knew of the tenancy of Autry & Son at the time of the purchase from the latter. In the view we take of the cas\\u00e9, it is immaterial whether the Yada Naval Stores Company knew of the relation between Mrs.- Sapp and Autry & Son before or at the time of the purchase. The tenant is estopped, as against the landlord, to deny the lessor's title. As otherwise stated, the tenant can not dispute the title of his landlord. The tenant can neither dispute the title of his landlord nor attorn to another while in possession acquired by his contract or lease; and if after the expiration of his term he desires to contest the title of his landlord, he must first, surrender, the possession acquired from him. Civil Code, \\u00a7 3698; Williams v. Garrison, 29 Ga. 503; Grizzard v. Roberts, 110 Ga. 41 (2), 44 (35 S. E. 291). This rule of the common law, as well as of our code, will not be controverted. It is, however, insisted that the rule -has no application here, since the Yada Naval Stores Company had no knowledge of the tenancy of Autry & Son at the time of the purchase. As a general rule, when the relation of landlord and tenant is once- established, it attaches to all who may succeed to the possession through or under the tenant either immediately or remotely. Were this not so, the general principle above discussed would be of little benefit to the landlord. The fact that the assignment by the tenant is in the form of a fee-simple conveyance is immaterial. The fact that the tenant exhibited to the purchaser an independent title is, in our view of the matter, likewise immaterial. We are aware that the Supreme Court of Pennsylvania in the case of Thompson v. Clark, 7 Pa. 62, has reached a contrary conclusion, but, as we think, erroneously. In that case it was held: \\\"The vendee of a tenant who has an apparent legal title, and from whom the purchase was made without notice of the tenancy, is not bound to deliver up possession to the landlord, but may defend in ejectment.\\\"- In 2 Herman on Estoppel, \\u00a7 861, it is said that the same estoppel which prevents a tenant from disputing his landlord's title likewise extends to all persons who enter upon premises under a contract of lease, and to all persons who by purchase, fraud, or otherwise, obtain possession from such tenant. It is there, however, added: \\\"But if one, not knowing that the tenant holds a lease, purchases the estate by an absolute deed from the tenant, who has an apparent legal title other than his lease, such purchaser may contest the title of the lessor.\\\" The text is based upon Thompson v. Clark, supra, and upon intimations contained in Cooper v. Smith, 8 Watts (Pa.) 536, and Jackson v. Davis, 5 Cow. (N Y. 3 123 (15 Am. D. 451). In White v. Barlow, 72 Ga. 887, the second headnote is as follows: \\\"A tenant can not dispute his landlord's title, and- the title of the landlord is good against such tenant, or one holding under him with notice.\\\" In the course of the opinion by Chief Justice Jackson it was observed that the proof in that case positively showed notice in the assignee or purchaser from the tenant. The apparent intimation contained in the decision must, therefore, be taken in connection with the facts of th\\u00e9 case.\\nIt is, of course, true that a purchaser from such tenant, without knowledge of the tenancy, may assert his adverse possession as a basis of prescriptive title. This principle is recognized in McDougald v. Reedy, 71 Ga. 750. These two distinct principles must not, however, be .confused. A clear statement of what we believe to be the sound rule upon the question presented in this case is found in Lane's Lessee v. Osment, 17 Tenn. 85: \\\"Neither the tenant himself, nor a purchaser of the land under him, whether with or without notice of the landlord's right, can dispute the title of the landlord within the period necessary to form the bar of the statute of limitations.\\\" In Jackson v. Harsen, 7 Cow. (N. Y.) 323 (17 Am. D. 517), it was held: \\\"A purchaser from the tenant, entering under an absolute conveyance in fee, is deemed to enter as the lessor's tenant, though he may not have known that his grantor derived possession from the lessor.\\\" So also in Reed v. Shepley, 6 Vt. 602, it was ruled: \\\"One holding land under another cannot set up an adverse claim until he has first surrendered up the possession; and all who claim under him are tenants subject to the same rule, whether they knew of that relationship or not.\\\" See also Jackson v. Scissam, 3 Johns. (N. Y.) 498; Emerick v. Tavener, 9 Grat. 220 (58 Am. D. 217); Jackson v. Davis, supra; Phillips v. Rothwell, 7 Ky. 33. Prior to the Code of 1863 a judgment in ejectment was not conclusive as to the title between the parties thereto. Parker v. Stambaugh, 71 Ga. 735. By section 3275 of the Code of 1863 (Code of 1910, \\u00a7 5583) it is declared that \\\"A judgment in ejectment shall be conclusive as to the title between the parties thereto, unless the jury find for the plaintiff less than the fee.\\\" The action of ejectment by the landlord against the tenant, where the landlord relies for recovery upon the privity existing between the parties, involves only the right of possession. Cases may be found to the contrary. Jochen v. Tibbells, 50 Mich. 33 (14 N. W. 690); Shaw v. Ilill, 79 Mich. 86 (44 N. W. 422); McKie v. Anderson, 78 Tex. 207 (14 S. W. 576). But the true rule is that such a judgment in favor of the landlord is not conclusive in a subsequent action by the tenant, because the tenant can not be concluded by a judgment as to matters which he could not litigate in the action in which the judgment was rendered. If the judgment in ejectment in favor of the landlord against the tenant is conclusive as to the title, equity, under proper pleadings, would certainly enable the tenant to formally admit the possession of the landlord and to assert that his title is in fact p\\u00e1ramount, thereby assuming the same burden that he would be required to assume and carry in a separate action. But in actions for rent and for use and occupation, the reason of the rule which estops the tenant from disputing the title of the landlord is plainly apparent. It is not apparent if the judgment in an action of ejectment by the landlord against the tenant is conclusive as to the title between the parties. Of course the tenant, in such air action, can not set up want of title in the landlord, nor can he set up paramount title in another; but if the judgment is conclusive as to the title, or the suit against the tenant is so framed in any case as to adjudicate the question of title, the English rule, which permits the tenant to set up paramount title in himself, is' sound in principle. Accident Ins. Co. v. Mackenzie, 5 Law T. (N. S.) 20, 10 C. B. N. S., Am. Reprint, 870. \\\"We are bound, under our decisions, to apply the estoppel in actions of ejectment, or .of complaint for land, by the landlord against the tenant; but our conclusion is that the effect of the judgment against the tenant, unless the suit be so framed aS to adjudicate the title, is to force the tenant to a separate action for the purpose of asserting his title. In the case at bar we are not embarrassed in applying the estoppel for any of the reasons suggested above, because the petition, as finally amended, prayed only for the recovery of the possession of th\\u00e9 land, together with the rents from the time of the filing of the petition. \\\"While some of the allegations in the petition may have been broad enough to call for an adjudication of the title, the landlord expressly alleged that the tenant's claim, of title was \\\"void as against plaintiff,\\\" and upon the trial she relied only upon the privity existing between the parties. The evidence, without dispute,'shows that Sapp had acquired the possession of the premises from the plaintiff under and by virtue of the lease. Sapp's possession thus acquired passed by successive assignments into the Yada Naval Stores Company. The possession of Sapp and of those who held under him, including the possession of \\u2022 that company, was therefore the possession of the original lessor. Her possession was notice, under our code, of whatever rights she had in the premises. It is this possession that must be restored before the tenant can assert title adverse to the landlord.\\nIn our opinion the most that can be said in favor of a vendee of a tenant who has an apparent legal title, and from whom the purchase was made without notice of the tenancy, is that as between such vendee and the lessor the equities are equal. In such case the landlord, having the prior equity, should prevail. We deem it unnecessary to say that the letter from Peebles & Company to Mrs. Sapp, conceding that it was received by Mrs. Sapp, did not amount to a surrender of the premises to Mrs. Sapp. We also think it unimportant that only a small part of the half lot of land involved was actually used by Sapp and those holding under him as a site for the manufacture of turpentine. The whole tract was leased for that .purpose, and, so far as the record discloses, there was no restriction, express or implied, in the lease as to the quantity of land that might be so used. The possession of the whole tract was therefore acquired under and by virtue of the lease, and the possession thereof must be restored to the lessor.\\nIn view of the ruling made upon the controlling question in this case, it is unnecessary to decide whether the suit for trespass brought by Mrs. Sapp against Autry & Son, which was pending at the time of the sale by Autry & Son to the Yada Naval Stores Company, was lis pendens, and whether this doctrine is to be applied in this case. We call attention, in passing, to the New York ease of Hailey v. Ano, 136 N. Y. 569 (32 N. E. 1068, 32 Am. St. R. 764), where it was ruled that in such an action, the land itself not being the subject-matter of the suit, and there being nothing in the pleadings *to show that title thereto is involved, the purchaser of the land pendente lite is not bound by the judgment in a subsequent action involving title to the same land.\\nJudgment affirmed.\\nAll the Justices concur.\"}"

ga/1082546.json

@@ -0,0 +1 @@
+"{\"id\": \"1082546\", \"name\": \"Williams v. The State\", \"name_abbreviation\": \"Williams v. State\", \"decision_date\": \"1918-08-14\", \"docket_number\": \"No. 775\", \"first_page\": \"310\", \"last_page\": \"311\", \"citations\": \"148 Ga. 310\", \"volume\": \"148\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T22:49:13.269190+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"Williams v. The State.\", \"head_matter\": \"Williams v. The State.\\nNo. 775.\\nAugust 14, 1918.\", \"word_count\": \"424\", \"char_count\": \"2400\", \"text\": \"Hill, J.\\nPreston Williams was indicted and convicted of the murder of J. W. Johnson. Having been denied a new trial, he excepted. The evidence for the State showed that on May 8, 1917, the defendant was operating an illicit whisky distillery near his residence. The deceased was a deputy sheriff, and attempted to arrest the defendant Williams at his still, while he was in the act of operating it. When the deceased came upon the, defendant he ordered the defendant to \\\"hands up,\\\" and the defendant threw up his left hand and pulled a pistol from his pocket with the other hand and shot twice, and then the deceased commenced shooting. The deceased died from the wounds thus inflicted. It is insisted that under such circumstances the defendant had the right to defend himself against an unlawful arrest, as he did not know the deceased was an officer, or who he was. Held:\\n1. It being a felony in this State to distil or manufacture intoxicating liquor at the date of the homicide (Park's Ann. Code Supp. 1917, \\u00a7 448 (rrrr)), and the defendant being engaged in the commission of such felony 'at the time the officer-sought to arrest him, such officer, as an officer or a private person, had the right to make the arrest with or without a warrant. Penal Code, \\u00a7 917, 921; and see 5 Corpus Juris, 392, \\u00a7 16. Therefore no rule of law relative to the right of a person to resist an unlawful arrest is applicable to the present case. It follows that the criticisms upon the charges given to the jury, and the complaints of omissions to charge, based on the theory of an illegal arrest, are without merit.\\n2. None of the special grounds of the motion require a reversal. The evidence was sufficient to authorize a finding that the accused was violating the law of the State by commiting a felony in the presence of the deputy sheriff. The jury were authorized, under the evidence, to find the defendant guilty of murder, and the court did not err in denying him a new trial. Williford v. State, 121 Ga. 173, 176 (48 S. E. 962). See Johnson. v. State, 130 Ga. 27 (6), 30 (60 S. E. 160).\\nJudgment affirmed.\\nAll the Justices concur.\\nIndictment for murder. Before Judge Thomas. Thomas superior court. December 15, 1917.\\nJohn B. Cooper, for plaintiff in error.\\nClifford Walker, attorney-general, Fondren Mitchell, solicitor-general, and M. C. Bennet, contra.\"}"

ga/1109462.json

@@ -0,0 +1 @@
+"{\"id\": \"1109462\", \"name\": \"ESTES v. THE STATE\", \"name_abbreviation\": \"Estes v. State\", \"decision_date\": \"1968-10-10\", \"docket_number\": \"24846\", \"first_page\": \"687\", \"last_page\": \"689\", \"citations\": \"224 Ga. 687\", \"volume\": \"224\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T01:53:36.249306+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"ESTES v. THE STATE.\", \"head_matter\": \"24846.\\nESTES v. THE STATE.\\nArgued September 12, 1968\\nDecided October 10, 1968.\\nJohn L. Bespess, Jr., James B. Venable, H. G. McBrayer, Jr., for appellant.\\nAlbert Wallace, Solicitor General, Arthur K. Bolton, Attorney General, Marion 0. Gordon, Assistant Attorney General, Courtney Wilder Stanton, for appellee.\", \"word_count\": \"736\", \"char_count\": \"4403\", \"text\": \"Grice, Justice.\\nThis appeal is by Mrs. Felicia Estes following her conviction and sentence for the murder of her husband Joe Douglas Estes. She was indicted by the grand jury of Clayton County for the homicide, was found guilty with recommendation of mercy upon trial in the superior court of that county, and thereupon was sentenced to life imprisonment.\\nTwo of the enumerations complain of the admission of testimony of a police officer, in that his testimony related to conversations which were not in the defendant's presence and therefore were hearsay and inadmissible. These enumerations are quite similar and may be treated together.\\nThe police officer was asked what two named persons told him that caused him to go to a hospital to talk with the defendant after the homicide had been discovered. Upon objection to the question as calling for hearsay, the solicitor general replied that he was asking the question to explain the conduct of the police officer in going to the hospital to talk with the defendant, not as proof of the facts stated but merely to show that such persons told the officer this and he acted upon what the persons told him. The judge allowed the question to be asked. The officer answered to the effect that one person told him that the defendant said she had shot the deceased, and that another person told him that the first person asked him to help him at the defendant's home. Thereupon, the defendant's counsel again objected. The solicitor general reiterated its purpose and the judge allowed it only for that purpose, so instructing the jury.\\nNo error was committed in admitting this testimony since it was allowed for the sole purpose of explaining the officer's conduct. See Code \\u00a7 38-302; Bryant v. State, 191 Ga. 686 (14) (13 SE2d 820); Jones v. State, 224 Ga. 283, 285 (161 SE2d 302).\\nAnother enumeration relating to the admission of evidence complains of the testimony of two police officers as to a statement of the defendant at the hospital on the night of the homicide. The appellant urges that the statement was not freely and voluntarily made because she was not in a condition to make a coherent statement or to protect her constitutional rights, and that the written statement was not complete in that everything she said was not reduced to writing.\\nThe evidence was that the defendant made the statement while lying on a bed in the hall of the hospital awaiting treatment for self-inflicted gunshot wounds and while in an emotional state, crying intermittently during the interview. There was nothing to indicate that she was under the influence of drugs or sedatives of any kind, but she was obviously upset. The officers testified that they did not write every word she said, but that they read back to her what was written and she signed the statement.\\nThe facts and circumstances surrounding this statement were considered by the trial judge in a separate hearing outside the presence of the jury. He found that the statement was voluntary, and therefore this became an issue for the jury. Likewise, the accuracy of the statement was for the jury to determine. The mere fact that the defendant was emotionally upset did not render it inadmissible. The requirements of Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694, 10 ALR3d 974), were met.\\nThe statement was properly admitted in evidence.\\nThe evidence was ample to support the verdict of guilty. That the defendant killed the deceased was established by her declaration to a neighbor immediately afterward, her incriminating statement above referred to, and the physical facts and circumstances of the homicide. The jury was likewise authorized to find that the homicide was not justified in law, but was occasioned by malice, as shown by her oral and written statements, and other evidence relating to the defendant's discovery earlier that day that the deceased was associating with another woman. Hence there is no merit in the enumerations complaining of denial of the motion for new trial because of the general 'grounds.\\nJudgment affirmed.\\nAll the Justices concur.\"}"

ga/1115287.json

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+"{\"id\": \"1115287\", \"name\": \"MAR-PAK MICHIGAN, INC. v. POINTER et al.\", \"name_abbreviation\": \"Mar-Pak Michigan, Inc. v. Pointer\", \"decision_date\": \"1970-02-05\", \"docket_number\": \"25612\", \"first_page\": \"146\", \"last_page\": \"147\", \"citations\": \"226 Ga. 146\", \"volume\": \"226\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T20:11:53.584254+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"MAR-PAK MICHIGAN, INC. v. POINTER et al.\", \"head_matter\": \"25612.\\nMAR-PAK MICHIGAN, INC. v. POINTER et al.\", \"word_count\": \"234\", \"char_count\": \"1336\", \"text\": \"Undercofler, Justice.\\nThe appellee moved to dismiss this appeal because the appellant is not a party to the case. The record shows that the appellant filed a motion to intervene in the case of The Mitchell Corporation of Georgia v. Will H. Pointer in the Superior Court of DeKalb County on July 15, 1969, and that on November 26, 1969, the date of the judgment here appealed, no order had been issued on the motion to intervene.\\nThe motion to dismiss this appeal is granted. \\\"Only a party to the case can appeal from a judgment . or one who has sought to become a party, as by way of intervention under Code Ann. \\u00a7 81A-124 and has been denied the right to do so.\\\" Coogler v. Berry, 117 Ga. App. 614 (161 SE2d 428). The appellant's contention that the trial court's failure to rule on its motion to intervene is tantamount to' an order denying the same is without merit. See Webb v. Walker, 213 Ga. 285 (2) (99 SE2d 75); Hardin v. Homeyer, 213 Ga. 321 (4) (99 SE2d 136).\\nAppeal dismissed.\\nAll the Justices concur.\\nArgued January 14, 1970\\nDecided February 5, 1970\\nRehearing denied February 19, 1970.\\nM. H. B'lackshear, Jr., for appellant.\\n.Carley .& Ramsay, George H. Carley, Arnall, Golden <fc Gregory, Edward, S. Sams, Peek, Whaley, Blackburn & Haldi, Glen-ville Haldi, for appellees.\"}"

ga/1152408.json

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+"{\"id\": \"1152408\", \"name\": \"REID et al. v. THE STATE\", \"name_abbreviation\": \"Reid v. State\", \"decision_date\": \"1976-06-22\", \"docket_number\": \"30958\", \"first_page\": \"106\", \"last_page\": \"110\", \"citations\": \"237 Ga. 106\", \"volume\": \"237\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T17:05:33.377559+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur, except Ingram, J., who concurs in the judgment only.\", \"parties\": \"REID et al. v. THE STATE.\", \"head_matter\": \"30958.\\nREID et al. v. THE STATE.\", \"word_count\": \"1687\", \"char_count\": \"9947\", \"text\": \"Jordan, Justice.\\nThis is an appeal by two brothers from convictions of armed robbery and sentences of twenty years each.\\nThe evidence at trial shows that on the afternoon of August 14, 1975, the Buz Lee Grocery Store near Statesboro, Georgia was robbed at gunpoint by two men of $370.00 in currency and checks. The sheriff's department issued a lookout for a car which had been seen parked near the store just prior to the robbery. In a short time the car was located at a local fishing area a few miles from the store. Officers arrested appellants and took into custody checks found at the arrest scene, which were later identified as those taken in the robbery. On the evening of the arrest, the appellants were read their constitutional rights under Miranda, at which time both denied any knowledge of the robbery. The next morning each appellant was separately taken back to the scene of the arrest, where Johnny Reid showed authorities where a .25 caliber pistol and $165 in cash were hidden and Henry Reid retrieved $150 in cash. That afternoon, after again being read their rights under Miranda, both appellants made statements admitting their participation in the robbery.\\n1. The state files a motion to dismiss on two grounds: (1) there is presently pending before the trial court a motion for new trial; (2) appellant failed to file the transcript of evidence within the 30 days prescribed by Code Ann. \\u00a7 6-806.\\nSupplemental briefs requested by this court show that at trial appellants were represented by appointed counsel and that after trial appellants, unknown to their appointed counsel, retained other counsel for appeal. On September 19, 1975, retained counsel filed a notice of appeal. Thereafter, on September 22, 1975, appointed counsel, without knowledge of his replacement, filed a motion for new trial in the trial court. The motion for new trial was filed without the authority of appellants and at the time they had retained counsel. Under such facts this appeal will be considered.\\nAs to ground 2 of the motion, no objection and ruling was invoked in the trial court and this ground is deemed waived. See Rule 11 (c) of this court.\\nThe motion to dismiss is denied.\\n2. In their first enumeration of error appellants complain that the trial proceeded much too swiftly preventing them from obtaining retained counsel of their choice, and that the trial court arbitrarily denied their motion for a continuance.\\nAppellants were arrested on August 14, 1975, and tried eleven days later on August 25, 1975. On the first day of the trial the following colloquy occurred between the trial judge and the appellant's appointed counsel: \\\"Mr. Bacon: 'If Your Honor please a firm of attorneys in Atlanta has called me two or three times on this case, and stated they wanted to get into it, and asked me to prevail on the Court to hold it up until they could get into it. Now I understand from the District Attorney the same people have contacted him and had told him since they understood the circumstances maybe they would not come into it, but they haven't told me that.' The Court: T can't practice the law over the telephone with any Atlanta lawyers. We already have a very fine lawyer representing the defendants, and I'm going to ask you to continue to do so.' Mr. Bacon: 'All right sir we are ready then.' The Court: 'What announcement for the defendants?' Mr. Bacon: 'We are ready.' \\\" The trial then proceeded.\\nThe Constitution of Georgia, Art. I, Sec. I., Par. V (Code Ann. \\u00a7 2-105) has been interpreted to confer upon every criminal defendant the right to be represented \\\"by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.\\\" Long v. State, 119 Ga. App. 82, 83 (166 SE2d 365) (1969). Also see Delk v. State, 100 Ga. 61 (27 SE 152) (1896). The federal courts have adopted a similar rule, holding that the facts of a particular case determine whether or not the denial of a request for continuance to obtain counsel is a violation of an accused's Sixth Amendment guarantee. United States v. Casey, 480 F2d 151 (5th Cir. 1973).\\nIn Long v. State, supra, the defendant stated in court that he had retained an attorney who had agreed to represent him but who was not in court. An associate of the retained attorney who had made an appearance for the accused at a pre-trial conference to move for a continuance was unprepared to try the case when the trial court denied his motion and immediately called the case for trial. The Court of Appeals held that where it was made clear that the defendant had selected and employed counsel, who was not present, but whose whereabouts were known and who may have been reasonably available, the accused cannot be forced to go to trial with what amounted to appointed counsel.\\nThe record and transcript sub judice does not show a reasonable diligence on appellants' part to retain counsel, or on the part of alleged retained counsel, if indeed retained, to make such fact known to the trial court. There was no showing by appointed counsel or appellant that counsel had been employed, nor was the identity or whereabouts of the alleged counsel revealed or when such counsel might be available for trial. The colloquy between the court and appointed counsel shows an uncertainty by appointed counsel as to whether other counsel had actually been retained, and only suggested the mere possibility of their employment. These facts do not display the diligence by appellant or his alleged retained counsel which is contemplated by the Georgia Constitution or the Sixth Amendment, and is not sufficient to show an abuse of discretion by the trial court in proceeding with the trial.\\nAppellants further contend for the first time on appeal that they were not given adequate time to prepare their defense and that the trial court abused its discretion by refusing a continuance. No contention is made by appellant here or by his counsel at trial that counsel had not had sufficient time to prepare a defense. In cases where this court has held the trial court to have erred in refusing to grant a continuance, the defense counsel moved for a continuance on the ground of insufficient time to prepare a defense. See Smith v. Greek, 226 Ga. 312 (175 SE2d 1) (1970) and Smith v. State, 215 Ga. 362 (110 SE2d 635) (1959).\\nThe record shows that counsel was appointed at appellants? commitment hearing on August 16,1975; the trial was conducted August 25, 1975. Appointed counsel never contended that he was unprepared, nor did he move for a continuance on that ground. The mere fact that the trial proceeded nine days after the counsel's appointment does not necessarily show that counsel was unprepared.\\n3. During the trial and in the presence of the jury the following statement was made by the district attorney: \\\"If it please the Court as State's Exhibit No. 4 we would introduce into evidence the first money that was recovered by I believe it was Agent Oxford. Money stolen from the robbery and it was surrendered to the Sheriff here and kept in his custody until brought into Court today. It is cash money we would like to describe this money for the benefit of the record and at this time return it to its rightful owner.\\\" The court then asked defense counsel if there were any objections, to which he replied, \\\"No, sir.\\\" Appellants now contend that such conduct was highly prejudicial and precluded the jury from rendering an objective and unbiased verdict.\\nWe are unable to see how this statement could have been harmful considering the overwhelming evidence of guilt in this case. The automobile which the appellants were in possession of when arrested was seen near the store moments before the robbery. Checks taken in the robbery were found at the scene of the arrest. Furthermore, appellants made statements admitting their part in the robbery and led officials to the stolen money and the pistol used in the robbery. The appellants neither presented a case nor established a defense.\\nMoreover, the appellants' counsel made no objection to the district attorney's statement, or moved for a mistrial.\\nWe find no merit in appellants' third enumeration.\\n4. Appellants contend that the trial court erred in admitting testimony concerning their respective confessions.\\nThe transcript shows that appellants never objected to the admission of their confessions. Regardless, the state laid a careful foundation establishing the voluntariness of the confessions.\\nThe enumeration is not now reviewable.\\n5. The state's evidence was more than sufficient to sustain the guilty verdicts.\\nLastly, the appellants contend that the jury's verdict was insufficient, and that the trial court erred in conforming the verdict on its own motion.\\nSubmitted March 22, 1976\\nDecided June 22, 1976.\\nHardigg & Hardigg, Glenda Hardigg, for appellants.\\nJ. Lane Johnston, District Attorney, Arthur K. Bolton, Attorney General, for appellee.\\nBoth appellants were tried at the same trial, and in his charge the judge instructed the jury that they could find both defendants not guilty or guilty, or find any one defendant guilty and the other not guilty. The jury returned the verdict on a printed form which included the singular word \\\"defendant.\\\" Therefore, the verdict read: \\\"We the jury find the defendant guilty.\\\" The trial judge asked the foreman if the jury meant to find both defendants guilty, to which he replied affirmatively. The judge then asked defense counsel if he had any objections to conforming the verdict to read \\\"defendants.\\\" Counsel stated no objections. The judge simply conformed the verdict to the intentions of the jury, which he has the authority to do. Conroy v. State, 231 Ga. 472 (202 SE2d 398) (1973); Sullivan v. State, 9 Ga. App. 377 (115 SE 190) (1923).\\nWe find no error.\\nJudgment affirmed.\\nAll the Justices concur, except Ingram, J., who concurs in the judgment only.\"}"

ga/1171908.json

@@ -0,0 +1 @@
+"{\"id\": \"1171908\", \"name\": \"JONES v. JONES\", \"name_abbreviation\": \"Jones v. Jones\", \"decision_date\": \"1979-11-21\", \"docket_number\": \"35562\", \"first_page\": \"759\", \"last_page\": \"759\", \"citations\": \"244 Ga. 759\", \"volume\": \"244\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T01:50:24.192201+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"JONES v. JONES.\", \"head_matter\": \"35562.\\nJONES v. JONES.\\nSubmitted November 2, 1979\\nDecided November 21, 1979.\\nScott Walters, Jr., for appellant.\\nJohn L. Watson, Jr., for appellee.\", \"word_count\": \"151\", \"char_count\": \"947\", \"text\": \"Undercofler, Presiding Justice.\\nThe husband here was held in contempt for failing to pay his children's medical bills of $36 and $152. The parties' divorce decree provides \\\"[t]hat the said [husband] shall maintain insurance to cover the doctor, dental [sic], nursing, hospital, medicines, orthopedic or orthodontics braces for the minor children of the parties.\\\" (Emphasis supplied.) The husband has insurance coverage for the children, but these bills were not payable by the insurance company. He contends he is therefore not liable for them. The wife argues he was ordered to \\\"cover\\\" these expenses and is a self-insurer to the extent the insurance does not pay. Roberts v. Roberts, 229 Ga. 689 (194 SE2d 100) (1972). The trial court agreed. We affirm.\\nJudgment affirmed.\\nAll the Justices concur.\"}"

ga/1190833.json

@@ -0,0 +1 @@
+"{\"id\": \"1190833\", \"name\": \"MAHONY v. CITY OF ATLANTA et al.\", \"name_abbreviation\": \"Mahony v. City of Atlanta\", \"decision_date\": \"1982-09-28\", \"docket_number\": \"38709\", \"first_page\": \"7\", \"last_page\": \"8\", \"citations\": \"250 Ga. 7\", \"volume\": \"250\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T17:13:59.863509+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur, except Weltner, J., who dissents.\", \"parties\": \"MAHONY v. CITY OF ATLANTA et al.\", \"head_matter\": \"38709.\\nMAHONY v. CITY OF ATLANTA et al.\", \"word_count\": \"65\", \"char_count\": \"392\", \"text\": \"Per curiam.\\nAfter plenary consideration of this matter, it is found not to satisfy the criteria for the grant of certiorari and the writ is therefore vacated.\\nDecided September 28, 1982.\\nPaul S. Liston, Charles L. Barrett III, for appellant.\\nMarva Jones Brooks, Gary S. Walker, for appellees.\\nAll the Justices concur, except Weltner, J., who dissents.\"}"

ga/1210273.json

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+"{\"id\": \"1210273\", \"name\": \"INTERNATIONAL PAPER REALTY COMPANY v. BETHUNE\", \"name_abbreviation\": \"International Paper Realty Co. v. Bethune\", \"decision_date\": \"1986-06-10\", \"docket_number\": \"43092\", \"first_page\": \"54\", \"last_page\": \"57\", \"citations\": \"256 Ga. 54\", \"volume\": \"256\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T20:05:53.206073+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur, except Marshall, C. J., Clarke, P. J., and Weltner, J., who dissent.\", \"parties\": \"INTERNATIONAL PAPER REALTY COMPANY v. BETHUNE.\", \"head_matter\": \"43092.\\nINTERNATIONAL PAPER REALTY COMPANY v. BETHUNE.\\n(344 SE2d 228)\", \"word_count\": \"1114\", \"char_count\": \"6672\", \"text\": \"Gregory, Justice.\\nDel C. Bethune, as next friend for her son William Ramey, filed this action for damages against International Paper Realty Corporation (International Paper) and surveyors Robert Leake and W. E. Gilbert. Bethune alleged Ramey was injured when he fell on an iron surveying pin which Leake and Gilbert had put in place to mark the boundary between property owned by International Paper and third parties. Bethune maintained in her complaint that Ramey was playing upon public lands adjacent to those owned by International Paper at the time of the injury.\\nThe defendants moved for summary judgment. The trial court granted the motions of Leake and Gilbert, but denied the motion of International Paper. The Court of Appeals affirmed both judgments. Intl. Paper Realty Co. v. Bethune, 177 Ga. App. 330 (339 SE2d 296) (1985). We granted International Paper's petition for certiorari, and now affirm the judgment of the Court of Appeals.\\nContrary to International Paper's argument, this case does not turn on the issue of a landowner's liability to invitees, licensees or trespassers who go upon his property and are injured there. (For an analysis of the landowner's duties to these persons, see Restatement of the Law Second, Torts, \\u00a7 328-350.) As the Court of Appeals pointed out, this case involves a claim against a landowner whose land is immediately adjacent to a public way. Such a landowner may not, without incurring a duty, maintain an artificial condition so situated that persons lawfully using the public way may, by accident or some force not their own fault, fall upon and be injured by the artificial condition. Hutson v. King, 95 Ga. 271 (22 SE 615) (1894); City Council of Augusta v. Dozier, 126 Ga. 524 (55 SE 234) (1906); Nashville, Chattanooga & St. L. R. Co. v. Cook, 177 Ga. 196 (170 SE 28) (1833). If an artificial condition exists under these circumstances, the landowner owes a duty of due care to guard, cover or protect it for the safety of those on the public way. Cox v. Greenfield, 50 Ga. App. 699 (179 SE 178) (1935); Ga. Power Co. v. Murray, 57 Ga. App. 141 (194 SE 403) (1937); Restatement of the Law Second, Torts, \\u00a7 368. Furthermore, the owner of land so situated must take into account the tendency of children to deviate from a public way. Restatement of the Law Second, Torts, \\u00a7 369.\\nWhere the alleged artificial condition is a steel rod driven into the ground with some two inches protruding above ground, a jury must decide if it involves an unreasonable risk to persons situated such as the plaintiff, and whether defendant realized or should have realized that it involved such an unreasonable risk. Restatement of the Law Second, Torts, \\u00a7 368, 369. Therefore, the Court of Appeals was correct in affirming the denial of International Paper's motion for summary judgment.\\nJudgment affirmed.\\nAll the Justices concur, except Marshall, C. J., Clarke, P. J., and Weltner, J., who dissent.\"}"

ga/1210317.json

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+"{\"id\": \"1210317\", \"name\": \"NATIONAL GYPSUM COMPANY v. WAMMOCK et al.\", \"name_abbreviation\": \"National Gypsum Co. v. Wammock\", \"decision_date\": \"1987-03-19\", \"docket_number\": \"43860\", \"first_page\": \"803\", \"last_page\": \"808\", \"citations\": \"256 Ga. 803\", \"volume\": \"256\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T20:05:53.206073+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur, except Hunt, J., who concurs specially as to the second question, and Smith, J., who dissents. Gregory J., disqualified. All the Justices concur, except Bell, J., not\", \"parties\": \"NATIONAL GYPSUM COMPANY v. WAMMOCK et al.\", \"head_matter\": \"43860.\\nNATIONAL GYPSUM COMPANY v. WAMMOCK et al.\\n(353 SE2d 809)\", \"word_count\": \"1845\", \"char_count\": \"11368\", \"text\": \"Per curiam.\\nThis case has been docketed in this court as certified questions from the United States Court of Appeals for the Eleventh Circuit. The facts and the certified questions, as stated by the certificate from the Eleventh Circuit, are as follows:\\n\\\"This civil action was commenced by Julian P. Wammock in 1981, approximately three years after his retirement from work as a carpenter. The complaint was filed against sixteen manufacturers and distributors of asbestos-containing products, for damages arising from Mr. Wammock's exposure to asbestos. Mr. Wammock asserted two legal theories of liability \\u2014 strict liability and negligent failure to warn. In addition to compensatory damages, Mr. Wammock sought to recover against all defendants an award of punitive damages on the grounds that the defendants for a long time were aware of the danger of asbestos exposure but intentionally failed to disseminate such information. All other defendants settled or were dismissed and the case proceeded to trial against National Gypsum Company ('National Gypsum') alone in May 1985.\\n\\\"The jury returned a verdict for plaintiff of $40,000 in compensatory damages and $250,000 in punitive damages, and National Gypsum appealed from the final judgment entered on that verdict. On appeal, we ordered the certification of certain questions to the Su preme Court of Georgia in accordance with Rule 36 [sic] of that court. Wammock v. National Gypsum Company, 793 F.2d 1518 (11th Cir. 1986). The appellee filed a petition for rehearing, which we treated as a motion for reconsideration and denied by order dated July 21, 1986.\\n\\\"Mr. Wammock, a life-long carpenter, throughout his career had been exposed in various degrees to asbestos-containing products of numerous manufacturers. His primary but not sole exposure to a National Gypsum product was to joint compound while installing wallboard. National Gypsum's joint compound \\u2014 sometimes called joint treatment or joint cement, a product used to cover the seams between sheets of wallboard \\u2014 in the past contained asbestos as one of its constituent ingredients.\\n\\\"Mr. Wammock's employment as a carpenter began in the shipyards between 1942 and 1946. Thereafter, he worked in the construction trades until his retirement in 1978. In 1981, three years after his retirement, Mr. Wammock was diagnosed as having asbestosis due to his continued exposure to asbestos. At the time of trial, Mr. Wammock was seventy-one years of age.\\n\\\"For present purposes, we need not recount the evidence adduced at trial in detail . In short, the appellee contends that the evidence adduced at trial was sufficient such that National Gypsum 'knew or should have known' of the hazards of asbestos before 1972 . In contrast, the appellant contends that even if National Gypsum was negligent in failing to extrapolate from the known hazards of high level exposure to the unknown dangers of low level exposure, the fact that it should have known of those dangers is insufficient to support an award of punitive damages under Georgia law.\\\"\\nCertified Questions\\n\\\"(1) Can a plaintiff recover punitive damages under Georgia law in asbestos tort litigation where the defendants may be liable for multiple awards of compensatory and punitive damages for the same conduct?\\n\\\"(2) Was the evidence concerning the conduct of defendant sufficient to justify an award of punitive damages under Georgia law?\\n\\\"The Georgia Supreme Court will not in any way be bound by this articulation of the questions in consideration of the issues in volved . . . .\\\"\\n1. We respectfully decline to answer the first certified question. Our review of this case shows that the Eleventh Circuit's references to \\\"punitive damages\\\" are intended to mean exemplary damages awarded pursuant to OCGA \\u00a7 51-12-5, which authorizes, in pertinent part, \\\"additional damages to deter the wrongdoer from repeating the trespass. . . .\\\" The award of punitive damages in this case appears to be the first award of punitive damages in an asbestosis case which has been obtained against National Gypsum, either in the state courts or in federal courts under diversity jurisdiction. Therefore, assuming for the moment that the award of punitive damages was obtained pursuant to \\u00a7 51-12-5 (see discussion in Divisions 2, 3, and 4, infra), the question whether \\u00a7 51-12-5 permits multiple awards of exemplary damages to deter the wrongdoer from repeating the trespass is anticipatory.\\nWe find that, \\\"[bjecause of the anticipatory nature of the suit there are no facts presenting a controversy to which this court can apply the provisions of [\\u00a7 51-12-5]. In the absence of a factual controversy we believe it to be inappropriate for this court to establish the parameters within which [\\u00a7 51-12-5] may or may not be operative.\\\" American Booksellers Assn. v. Webb, 254 Ga. 399, 401 (2) (329 SE2d 495) (1985).\\n2. The second certified question asks us to determine the sufficiency of the evidence in this case to support the award of punitive damages. We respectfully decline to answer this question, because the jury instructions did not accurately reflect OCGA \\u00a7 51-12-5.\\nPunitive damages are generally regarded as having three purposes: To punish the person doing the wrongful act, to discourage him from similar conduct in the future, and to discourage others from such conduct. Restatement of Torts (2d), \\u00a7 908 (1). However, in contrast to the general view, the first ground of OCGA \\u00a7 51-12-5 \\u2014 \\\"to deter the wrongdoer from repeating the trespass\\\" \\u2014 is limited to its plain meaning. The sole permissible purpose of that Code section (other than the second ground of \\u00a7 51-12-5, compensation for wounded feelings, which was not at issue in this case) is the deterrence of the defendant-wrongdoer from similar future conduct. \\\"Under this section the jury is not authorized to assess damages as a punishment for the wrong done.\\\" Johnson v. Morris, 158 Ga. 403, 405 (123 SE 707) (1924). Furthermore, the statute is not intended to deter other potential wrongdoers from similar future conduct. Ratteree v. Chapman, 79 Ga. 574 (4) (4 SE 684) (1887).\\n3. In the instant case, the federal district court instructed the jury as follows: \\\"In addition to actual damages such as I have tried to explain to you, the law permits the jury, under certain circumstances, to award an injured [party] punitive or exemplary damages, in order to punish the wrongdoer for some extraordinary misconduct, and to serve as an example or warning to others not to engage in such conduct.\\\" (Emphasis supplied.) Neither of the purposes stated in this charge are included in OCGA \\u00a7 51-12-5, and the sole relevant purpose of exemplary damages was omitted. Thus, the charge was not an instruction on \\u00a7 51-12-5.\\n4. We find that, inasmuch as the punitive damages in question were not awarded under \\u00a7 51-12-5, it would serve no useful purpose for this court to determine whether the evidence concerning the conduct of the defendant in this case was sufficient to justify an award of exemplary damages pursuant to \\u00a7 51-12-5. Thus, we decline to answer the second certified question of the Eleventh Circuit.\\nCertified Questions declined.\\nAll the Justices concur, except Hunt, J., who concurs specially as to the second question, and Smith, J., who dissents. Gregory J., disqualified. All the Justices concur, except Bell, J., not\\nFormer Rule 36 has been superseded. Rule 36 was the certification rule under previous Rules of the Georgia Supreme Court, 242 Ga. 1001 et seq., eff. August 1, 1979. Under our current rules, 252 Ga. A-l et seq., eff. July 1, 1984, the certification rule is denominated as Rule 37.\\nWe also note that a new Tort Reform Act has been passed by the General Assembly during the recently-completed 1987 legislative session, and is currently awaiting the Governor's signature. Sections 4 and 5 of the Act propose to replace \\u00a7 51-12-5 with a new code section, \\u00a7 51-12-5.1, for causes of action arising on or after July i, 1987. Sec. 51-12-5.1, if it becomes law, will make significant changes in the Georgia law of punitive damages.\"}"

ga/1228893.json

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+"{\"id\": \"1228893\", \"name\": \"STEPHENSON v. BOARD OF COMMISSIONERS OF COBB COUNTY et al.\", \"name_abbreviation\": \"Stephenson v. Board of Commissioners\", \"decision_date\": \"1991-07-03\", \"docket_number\": \"S91A0135\", \"first_page\": \"399\", \"last_page\": \"402\", \"citations\": \"261 Ga. 399\", \"volume\": \"261\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T01:54:05.873822+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"STEPHENSON v. BOARD OF COMMISSIONERS OF COBB COUNTY et al.\", \"head_matter\": \"S91A0135.\\nSTEPHENSON v. BOARD OF COMMISSIONERS OF COBB COUNTY et al.\\n(405 SE2d 488)\", \"word_count\": \"1233\", \"char_count\": \"7398\", \"text\": \"Bell, Justice.\\nAppellant Stephenson is the Clerk of Superior Court of Cobb County. In January 1989 Stephenson employed an attorney to defend him in an inmate's mandamus action. The attorney was not one of the attorneys hired by the Cobb County Board of Commissioners (hereafter, the board) to do county work. Stephenson later sought reimbursement from the board for the attorney fees. The board refused to pay the fees on the ground Stephenson did not have the authority to hire legal counsel for the clerk's office. The board maintained that only it had the power to contract for an attorney's services. Stephenson then filed a mandamus action against the board to compel the board to pay the attorney fees. The superior court denied Stephenson's mandamus petition, and Stephenson has now filed this appeal. We affirm.\\n1. Stephenson and the board agree that Stephenson must defend lawsuits filed against his office, and that he must have an attorney to do so. Both parties claim the exclusive power to employ such counsel. In this regard, we must decide whether either party has that power pursuant to an express or implicit grant from the legislature, and whether Stephenson has the power pursuant to the inherent power of the courts. If the board has the exclusive power to employ counsel for Stephenson, the issue becomes whether the board's exercise of that power violates the 1983 Ga. Const., Art. IX, Sec. II, Par. I (c) (1) or (7), which preclude the board from exercising any power in a manner affecting \\\"any elective county office,\\\" id., Par. I (c) (1), or \\\"any court or the personnel thereof,\\\" id., Par. I (c) (7). We conclude that the legislature has granted the board the implicit and exclusive power to employ counsel for county officers and that the exercise of that power in this case does not violate Art. IX, Sec. II, Par. I (c) (1) or (7).\\n2. We will first address whether Stephenson has the power to employ counsel to represent his office, pursuant to either an express or implicit grant from the legislature or pursuant to the inherent power of the courts.\\n(a) Regarding legislative grants of power, we begin with the rule that neither the counties of this state nor their officers have the power to do any act, make any contract, or incur any liability not expressly authorized by a legislative grant of power or necessarily implied from an express legislative grant of power. Mobley v. Polk County, 242 Ga. 798, 801 (1) (251 SE2d 538) (1979); DeKalb County v. Atlanta Gas Light Co., 228 Ga. 512, 513 (2) (186 SE2d 732) (1972). The General Assembly has not expressly granted clerks of superior court the power to hire attorneys, see OCGA \\u00a7 15-6-60 and 61, and we can find no legislative grant of power from which it is necessarily implied that clerks have the power to contract for the services of an attorney.\\n(b) Moreover, we find no merit to Stephenson's argument that clerks of court have inherent judicial power and that under this power clerks can employ counsel to assist them in the administration of justice. Inherent judicial power is vested in the courts of this state and not in the clerk's offices thereof. See Grimsley v. Twiggs County, 249 Ga. 632, 634 (292 SE2d 675) (1982) (superior courts have inherent power to order payment of public funds for compelling need essential to administration of justice).\\n3. Having determined that Stephenson has neither the express, implicit, nor inherent power to employ counsel, we turn to whether the legislature has either expressly or implicitly granted the board the power to employ counsel to represent county officers.\\nA county governing authority does not have the express authority to hire attorneys under either the 1983 Georgia Constitution, see Art. IX, Sec. II, Par. I (a, b) and Par. Ill, or under statutory law, see OCGA \\u00a7 36-5-22.1. However, a county governing authority has the power to undertake to defend its employees and its elected or appointed officers in litigation arising out of the performance of their duties. OCGA \\u00a7 45-9-21. Here, the board has adopted such an undertaking for Cobb County. Moreover, the General Assembly has given the board the exclusive power to incur indebtedness and to authorize contracts and purchases. Ga. L. 1964, Ex. Sess., pp. 2075, 2081, \\u00a7 11. Further, we have held that the legislative grant of authority to control the fiscal affairs of a county carries with it the implicit power to employ counsel. Stewart v. Davis, 210 Ga. 278 (1) (79 SE2d 535) (1954); Templeman v. Jeffries, 172 Ga. 895, 899 (159 SE 248) (1931).\\nBecause the board has the exclusive authority to control the fiscal affairs of the county and has the power to defend county officers, we conclude the board has the implicit power to employ counsel for county officers. Moreover, because Stephenson lacks any power to employ counsel, the board's power is an exclusive power in the instant case.\\n4. Next, we address Stephenson's argument that the board's selection of counsel to represent his office violates Art. IX, Sec. II, Par. I (c) (1) and (7), which provide that county governing authorities may not take any action \\\"affecting any elective county office, . or the personnel thereof,\\\" id., Par. I (c) (1), or \\\"affecting any court or the personnel thereof,\\\" id., Par. I (c) (7). In the instant case, we find that the board's employment of counsel to represent Stephenson does not violate the foregoing constitutional provisions.\\nFirst, we conclude that a county governing authority could \\\"affect\\\" the personnel of an elective county office or court by naming the personnel of that office. Here, we find the board is not \\\"affecting\\\" the clerk's office in this sense by employing counsel to represent the clerk, as the attorney is not part of the clerk's staff.\\nMoreover, we conclude that an action of a county governing authority could \\\"affect\\\" an elective county office or a court or the personnel of either if that action negatively impacted on the ability of the elective county officer or court or the personnel thereof to perform their jobs. See generally Price v. Fulton County Comm., 170 Ga. App. 736, 737-738 (1) (318 SE2d 153) (1984). We find no such impermissible \\\"effect\\\" in the instant case. The board's employment of counsel does not by itself negatively impact on the ability of Stephenson or his personnel to carry out their duties. Further, we disagree with Stephenson's argument that the particular attorney employed by the board has a conflict of interest in representing Stephenson and that to permit the board to select his attorney under these circumstances would negatively impact on his ability to perform his responsibilities. This argument fails because Stephenson did not demonstrate a conflict of interest that would have prohibited the attorney employed by the board from representing him in the inmate's mandamus action.\\nDecided July 3, 1991.\\nRobert L. Beard, Jr., for appellant.\\nBarnes, Browning, Tanksley & Casurella, W. Grady Pedrick, Cauthorn & Phillips, Thomas E. Cauthorn III, B. Wayne Phillips, for appellees.\\nJudgment affirmed.\\nAll the Justices concur.\\nHowever, there may be some instances in which a superior court might exercise its inherent power to require the payment of attorney fees for the clerk of superior court when separation of powers considerations demand it.\"}"

ga/123317.json

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+"{\"id\": \"123317\", \"name\": \"DRANE v. THE STATE\", \"name_abbreviation\": \"Drane v. State\", \"decision_date\": \"1999-11-01\", \"docket_number\": \"S99P1003\", \"first_page\": \"849\", \"last_page\": \"856\", \"citations\": \"271 Ga. 849\", \"volume\": \"271\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T19:04:32.934131+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur, except Sears, J., who concurs in part and dissents in part.\", \"parties\": \"DRANE v. THE STATE.\", \"head_matter\": \"S99P1003.\\nDRANE v. THE STATE.\\n(523 SE2d 301)\", \"word_count\": \"3410\", \"char_count\": \"20423\", \"text\": \"Hines, Justice.\\nA jury convicted Leonard M. Drane of malice murder, felony murder, and aggravated battery, and imposed a death sentence for the malice murder. The evidence adduced at trial showed that Drane and co-indictee David Willis picked up Renee Blackmon on June 13, 1990, and drove her to a secluded road. Ms. Blackmon's body was found in a lake on July 1, 1990. She had been shot point-blank in the head with a shotgun and her throat had been cut at least six times. She was tied to a brake drum with a rope. After his arrest, Drane claimed that Willis had sex with the victim and shot her with a shotgun, and then cut her throat because she was still breathing. Drane said he did not know Willis was going to kill the victim and he did not participate in her killing. However, he admitted helping Willis dispose of the body, hide the gun, wash Willis's truck, and burn their clothes; and that he continued to live with Willis for three weeks until their arrest. He claimed he did so because he was afraid of Willis.\\nAt trial, a witness testified that Drane told her prior to his arrest that he and Willis \\\"picked this [black] girl up at the Huddle House in Elberton, Georgia, and that it would be the last ride she'd ever take.\\\" He further said he \\\"[had sex with] her so bad that she'd never have any more babies\\\" and that he and Willis threw her in the lake. He said the only mistake he made was to put one block on her instead of two (the body had just been discovered). Another witness testified that Drane told him he cut the victim's throat because she was still alive after Willis shot her. On the night of the murder, after Willis and Drane had disposed of the victim's body, they went to a bar and met some women. They went with the women to a trailer, where they drank beer and made comments about hating blacks. One of the women noticed that the men, who were not wearing shirts, had scratches on their chests. In the penalty phase, one of the women testified that Drane forced her to orally sodomize him at knife point that same night.\\nIn Drane v. State, 265 Ga. 255 (455 SE2d 27) (1995), we held that the evidence was sufficient to support Drane's convictions and the finding of the existence of the statutory aggravating circumstances, id. at (1) and (7), but we remanded the case to the trial court to determine: (1) whether the prosecutor's peremptory strikes were gender-neutral and (2) whether there were exceptional facts and circumstances so that the exclusion of Willis's alleged confession to a cellmate deprived Drane of due process. Id. at 256. Because the results of the proceedings on remand call for further appellate review, we now address these issues and other remaining enumerations of error.\\n1. At Drane's 1992 trial, the state used nine out of nine peremptory strikes to remove female prospective jurors from the jury. The jury was selected from 39 prospective jurors, 22 of which were women. Eight females were members of the jury which convicted Drane and sentenced him to death. Pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), defendant made a motion based on the state's alleged gender bias in the use of its peremptory strikes. The state responded that Batson did not apply to gender. The trial court denied the motion. While Drane's appeal was pending, the United States Supreme Court decided J.E.B. v. Alabama, 511 U. S. 127 (114 SC 1419, 128 LE2d 89) (1994), which held that the equal protection clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender. Drane, 265 Ga. at 256 (2). Accordingly, we remanded this issue to the trial court for a hearing regarding the state's explanation of its per emptory strikes, and for a finding from the trial court as to whether the state's strikes were gender-neutral. Id.\\n\\\"Once a party challenging the exercise of a peremptory strike makes a prima facie showing of gender-based discrimination, the party exercising the strike must give an explanation for the strike that is gender-neutral, reasonably specific, and related to the case.\\\" Tedder v. State, 265 Ga. 900 (2) (463 SE2d 697) (1995). \\\"It is then for the trial court to determine, after considering the totality of the circumstances, whether the opponent of the strike has shown that the proponent of the strike was motivated by discriminatory intent in the exercise of the peremptory challenge.\\\" Turner v. State, 267 Ga. 149 (2) (476 SE2d 252) (1996). \\\"A trial court's findings on whether the opponent of the strike has met his burden of persuasion is entitled to great deference and will be affirmed unless clearly erroneous.\\\" Barnes v. State, 269 Ga. 345 (6) (496 SE2d 674) (1998); Turner, supra.\\nOn remand, the trial court found that the state had not discriminated on the basis of gender in its peremptory challenges after hearing the prosecutor's reasons for his strikes. Five prospective jurors were struck because they expressed reservations about imposing a death sentence and two prospective jurors had relatives who had been convicted of crimes and incarcerated. These are valid gender-neutral reasons which are adequate to justify a peremptory strike. See Barnes, supra; Davis v. State, 263 Ga. 5 (10) (426 SE2d 844) (1993); Tharpe v. State, 262 Ga. 110 (6) (416 SE2d 78) (1992). Another prospective juror stated that she believed reasonable doubt meant no doubt and that vulgar language from witnesses would bother her. Since these reasons are also gender-neutral and no discriminatory intent is inherent in the state's explanation of the strike, we do not conclude that the trial court's acceptance of these reasons was clearly erroneous. See Barnes, supra. The state claims that the final prospective juror it struck was \\\"not clear as to what reasonable doubt really was\\\" and was \\\"timid and quiet\\\" during jury selection. The trial court did not err by accepting the state's first reason because the record provides support for it and there is no discriminatory intent inherent in the explanation. Id. Support for the state's second reason is not readily apparent in the record, but considering the totality of the circumstances, including the final composition of the jury and the existence of other valid gender-neutral reasons for this strike and other strikes by the state, we cannot conclude that the trial court's acceptance of this reason was clearly erroneous. Id. We find no error with the trial court's J.E.B. ruling.\\n2. During the guilt-innocence phase of the trial, Drane tried to introduce evidence that his co-indictee, Willis, confessed his role in the murder to cellmate Marcus Guthrie. The state objected on hearsay grounds. During a proffer outside the presence of the jury, Guthrie testified that Willis told him he shot Ms. Blackmon and cut her throat. Willis was unavailable to testify because his murder trial was pending. The trial court ruled the testimony inadmissible in the guilt-innocence phase because it was hearsay and unreliable, but Guthrie was permitted to testify about the alleged confession in the penalty phase. On appeal, we remanded the case to the trial court because it was unclear from the record whether the trial court adequately considered the elements of reliability and necessity which would require admission of this evidence in the guilt-innocence phase under Chambers v. Mississippi, 410 U. S. 284 (93 SC 1038, 35 LE2d 297) (1973) (failure to admit evidence of another's confession, offered in the guilt-innocence phase of trial, may constitute a violation of due process under certain circumstances). Drane, 265 Ga. at 257 (3). See also Turner, 267 Ga. at 153-154 (3). On remand, the trial court ruled that Guthrie's testimony, while \\\"necessary\\\" to the defense, was properly excluded in the guilt-innocence phase because Willis's statement to Guthrie \\\"does not show persuasive assurances of trustworthiness nor was the statement made under circumstances providing considerable assurance of its reliability.\\\" We agree with the trial court.\\nEvidence of a co-indictee's alleged confession is generally inadmissible hearsay. Drane, supra; Guess v. State, 262 Ga. 487 (2) (422 SE2d 178) (1992). However, another person's confession to a third party may be admitted in the guilt-innocence phase under exceptional circumstances that show a considerable guaranty of the hearsay declarant's trustworthiness. Chambers, supra at 300-302; Drane, supra. The trial court must determine whether the value and reliability of the tendered hearsay evidence outweigh the harm resulting from a violation of the evidentiary rule. See Chambers, supra at 302; Turner, 267 Ga. at 154-155 (3). In Chambers, the hearsay testimony was deemed trustworthy and admissible because the declarant (alleged to be the perpetrator by Chambers) made three spontaneous confessions to close friends shortly after the murder, the confessions were against the declarant's interest, each confession was corroborated by other evidence (including eyewitness testimony to the shooting, a sworn confession by the declarant that was admitted at trial, and evidence that the alleged perpetrator had been seen with the murder weapon), and the declarant was present in the courtroom and available for cross-examination. In a later case, the United States Supreme Court held that the same balancing test must be employed in the sentencing phase for this type of evidence and listed an additional consideration of whether the declarant's alleged confession had been used by the state against the declarant at his trial. Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979).\\nOn remand, the trial court applied the Chambers!Green analysis to Guthrie's proposed guilt-innocence phase testimony and found the following: (1) Willis was not a close friend of Guthrie, but a mere cellmate. When asked if he was Willis's friend, Guthrie replied, \\\"Well, we talked occasionally, you know.\\\" (2) Guthrie admitted that inmates frequently exaggerate their crimes to appear tougher to their fellow inmates, which indicates that Willis had a motive to fabricate his statement at the time it was made. (3) Willis told Guthrie that the victim was a \\\"white girl\\\" when she was African-American. (4) Although there were some consistencies between Guthrie's testimony and the facts of the crimes, there was no independent evidence corroborating Willis's alleged claim that he did all of the shooting and slashing. (5) The state used Willis's alleged confession to Guthrie as evidence to convict Willis in a trial a year after Drane's trial. (6) Since Willis had not been tried at the time of Drane's trial, he was unavailable to testify on the advice of counsel. The trial court ruled that the alleged confession was properly excluded due to its lack of reliability and, after review of the record, we conclude that this ruling was not error. See Chambers, supra; Green, supra at 97. In addition, we note that the jury apparently did not attach much credibility to Willis's alleged confession to Guthrie because it was admitted in the penalty phase and they nonetheless chose to sentence Drane to death.\\n3. Drane also claims that Willis's alleged confession to Guthrie was admissible under the OCGA \\u00a7 24-3-5 co-conspirator exception to the hearsay rule, but acknowledges in his brief that he did not raise this issue during the trial or on his initial direct appeal because \\\"it was Appellant's contention that a conspiracy had not been proved at trial.\\\" Since this objection was not made at trial (in fact, the objection was deliberately avoided), it is waived on appeal. Earnest v. State, 262 Ga. 494 (1) (422 SE2d 188) (1992).\\n4. Before an audiotape of one of Drane's statements was played for the jury, Drane requested an in-chambers conference with the judge and prosecutor regarding a redaction made to the audiotape at Drane's request. Drane and his counsel attended, but the conference was not recorded by the court reporter. When the judge and other attendees returned to the courtroom, Drane's counsel placed an objection regarding the redaction on the record, and the trial court overruled it. After this case was remanded, Drane now claims that the trial transcript omits several other objections he made at the conference which were not ruled on by the trial court. See OCGA \\u00a7 5-6-41 (a); 17-8-5 (a); Unified Appeal Procedure Rule IV (A) (4). However, Drane's counsel testified at a hearing that he remembered no additional objections being made at the conference and that he ensured every objection he made was preserved on the record. Since Drane's objection at the in-chambers conference was preserved for appeal and there is no evidence to support Drane's contention that other objections were not recorded, we find no error. See Smith v. State, 251 Ga. 229 (2) (304 SE2d 716) (1983). After review of the record, we also conclude that even if the alleged objections to the edited audiotape were made, they are without merit. The trial court redacted the portion of Drane's statement referring to a fight he had with African-American inmates while previously incarcerated. Other comments he made about African-Americans in his statement were relevant to show a possible motive for his actions. See Mize v. State, 269 Ga. 646 (3) (501 SE2d 219) (1998); Boutwell v. State, 256 Ga. 63 (2) (344 SE2d 222) (1986).\\n5. The trial court's curative instructions adequately prevented error from arising due to a spectator's emotional outburst during the state's guilt-innocence phase closing argument. See Lowe v. State, 267 Ga. 410 (3) (478 SE2d 762) (1996); Byrd v. State, 262 Ga. 426 (1) (420 SE2d 748) (1992).\\n6. While asking the jury whether they wished to hear the court's guilt-innocence phase charge before they recessed for the day, the trial court said:\\n[I]t is now twenty-five minutes 'til five. I have the law to charge you which is quite lengthy that you'll be governed by in your deliberations. At that time, you will proceed to the jury room to reach a decision if you can based on what you've heard and the law charged and then we'd go into the second phase of this case. .\\nAfter the jury retired to make its scheduling decision, Drane objected that the trial court's comments implied that there would be a convic tion. The trial court issued curative instructions to the jury when they returned to the courtroom, telling them the court did not intend to imply any verdict and if the defendant was acquitted there would be no second phase of the trial. Drane did not object to these instructions, request further instructions, or move for a mistrial. Therefore, this issue has not been preserved for appellate review. Pye v. State, 269 Ga. 779 (9) (505 SE2d 4) (1998); Weems v. State, 268 Ga. 515 (2) (491 SE2d 325) (1997).\\n7. The death sentence in this case was not imposed under the influence of passion, prejudice or any other arbitrary factor. OCGA \\u00a7 17-10-35 (c) (1). This Court has previously found that Drane's death sentence is not disproportionate to the life sentence Willis received for the same murder. Drane, 265 Ga. at 260 (14). See also Waldrip v. State, 267 Ga. 739 (25) (482 SE2d 299) (1997) (\\\"That different juries hearing different evidence might arrive at different punishment [for co-defendants] does not establish a claim of disproportionality.\\\"); Carr v. State, 267 Ga. 547 (11) (480 SE2d 583) (1997) (defendant's death sentence not disproportionate to co-defendant's life sentence despite claim that co-defendant was the \\\"prime mover\\\" in the murder); Lee v. State, 258 Ga. 82 (10) (365 SE2d 99) (1988) (defendant's death sentence not disproportionate to co-defendant's life sentence despite defendant's claim he was a \\\"mere abettor\\\" to the murder); Beck v. State, 255 Ga. 483 (6) (340 SE2d 9) (1986) (defendant's death sentence not disproportionate to co-defendant's life sentence when evidence inconclusive as to which defendant was the actual killer); Allen v. State, 253 Ga. 390 (8) (321 SE2d 710) (1984) (death sentence not disproportionate to co-defendant's life sentence); McClesky v. State, 245 Ga. 108, 115 (263 SE2d 146) (1980) (\\\"There is not a simplistic rule that a co-defendant may not be sentenced to death when another co-defendant receives a lesser sentence.\\\"). Compare Hall v. State, 241 Ga. 252 (8) (244 SE2d 833) (1978). The state presented evidence that Drane cut the victim's throat while she was still breathing, helped dump her body and destroy evidence, and made disparaging remarks about the victim after her murder. There was also penalty phase evidence that Drane sexually assaulted another woman on the same night as the murder. See id. The death sentence is also not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. OCGA \\u00a7 17-10-35 (c) (3). The similar cases listed in the Appendix support the imposition of the death penalty in this case, as they involve aggravated batteries under the (b) (2) and (b) (7) aggravating circumstances.\\nDecided November 1, 1999\\nReconsideration denied December 20, 1999.\\nBilly I. Daughtry, Jr., for appellant.\\nDaniel J. Craig, District Attorney, Thurhert E. Baker, Attorney General, Allison B. Goldberg, Assistant Attorney General, for appellee.\\nJudgment affirmed.\\nAll the Justices concur, except Sears, J., who concurs in part and dissents in part.\\nThe victim was African-American and Willis and Drane are white. There was evidence of a racial motive for the murder.\\nThere was a full array of 42 prospective jurors, but the state did not use one of its peremptory strikes and Drane did not use two of his.\\nThe trial court made no finding as to prima facie discrimination, but this preliminary finding is moot once the proponent gives reasons for its strikes and the trial court makes its findings. Hernandez v. New York, 500 U. S. 352, 359 (111 SC 1859, 114 LE2d 395) (1991); Barnes v. State, 269 Ga. 345 (6) (496 SE2d 674) (1998).\\nGuthrie also testified in the penalty phase that Willis said he would have killed Drane \\\"if he wouldn't go through with what he wanted to do,\\\" but Guthrie admitted that Willis never said he made Drane do anything.\\nThe record on remand contains a transcript of Guthrie's testimony at Willis's trial. Although not specifically referred to by the trial court in its order, we note that this testimony further shows that Guthrie was Willis's cellmate in jail for only a week and that Guthrie did not approach law enforcement with Willis's alleged confession to him until months later when Guthrie was incarcerated with fellow inmate Leonard Drane. Guthrie admitted that he had had \\\"numerous conversations\\\" with Drane and that in certain circumstances he would lie to help a friend.\\nThe state sought a death sentence for Willis but the jury returned a sentence of life imprisonment.\"}"

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+"{\"id\": \"1253946\", \"name\": \"WHOLESALE MERCANTILE CO. v. JACKSON\", \"name_abbreviation\": \"Wholesale Mercantile Co. v. Jackson\", \"decision_date\": \"1907-11-11\", \"docket_number\": \"485\", \"first_page\": \"776\", \"last_page\": \"788\", \"citations\": \"2 Ga. App. 776\", \"volume\": \"2\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T19:37:01.255354+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WHOLESALE MERCANTILE CO. v. JACKSON.\", \"head_matter\": \"485.\\nWHOLESALE MERCANTILE CO. v. JACKSON.\\n1; The evidence on the only material point in the case was conflicting, and we have more than once held that in such a case this court can not interfere with the finding of the jury upon the facts. . '\\n2. There was no error in giving in charge to the jury the .exceptions to the statute of frauds, contained in the Civil Code, \\u00a72694, the defendant having pleaded the 7th paragraph of \\u00a72693 in defense, and there being ^ evidence to authorize such a charge. The charge on this subject, considered as -a whole, is a fair presentation of the principles applicable to the evidence. If there was error in present\\u00edsg the 3d exception to the \\u25a0 jury, the error was harmless to the plaintiff in error.\\n3.. There being evidence in behalf of the plaintiff that he delivered the exact quantity of goods bought, and no dispute as to the quality or price of the goods, it was no error to charge the jury that if they believed the testimony for the plaintiff, the defendant would have no right to reject, the goods, nor any \\u2022 reason for inspection. Acceptance follows necessarily on the impossibility of rejecting the goods contracted to be bought, ' when the goods delivered are in every respect the exact articles purchased.\\n4. The assignments of error contained in the first, second, fifth, seventh, eighth and ninth grounds of the motion for new trial, are not, for any of the reasons assigned, erroneous.\\n5. The court having more than once instructed the jury that plaintiff\\u2019s right to recover was dependent upon his compliance with his contract and acceptance of the goods by the buyer, the charge complained of in the fourth ground of the motion was not erroneous and could not be understood by the jury as relieving the plaintiff from compliance with his contract. Even if there had been ambiguity in the charge complained of in the fourth ground, it was relieved by the instruction of which complaint is made in the sixth ground.\\n6. There is no merit in the seventh ground of the motion for new trial. One can not complain if the court charges the jury in accordance with his own suggestion, although such charge must necessarily be qualified, in order that the jury may be legally instructed.\\n7. The charge complained of in the tenth ground of the motipn was given in compliance with an oral request, and could well have been declined if presented in writing, because the principle involved had already been fully covered in the general charge. If more specific instructions were desired, they should have been requested in writing.\\nComplaint, from city court of Cartersville \\u2014 Judge Foute. April 30, 1907.\\nSubmitted October 15,\\nDecided November 11, 1907.\\nJackson brought suit against the Wholesale Mercantile Company to recover the contract price of goods sold and 'delivered as -set forth in the petition. The defendant filed a plea denying the contract of sale as alleged, and claimed that a smaller quantity of the goods were bought. It further pleaded that the alleged contract was within the statute of frauds. The issue was submitted to the jury and a verdict was rendered in favor of the plaintiff, for the full contract price as claimed by him. The Wholesale .Mercantile Company assigns error upon the refusal of a new trial. In addition to the general grounds, it insisted, in its motion for a new trial> (1) That the court erred in omitting to clearly state to the jury certain contentions of the defendant, and, by stating the defendant\\u2019s contentions inaccurately, prejudiced its case before the jury. (2) That the court erred in stating the contention of the defendant on the subject of the statute of frauds, in that the statement of the defendant\\u2019s contention under the statute of frauds was too general and indefinite. (3) That the court erred in charging the jury the first and third exceptions to subsection 7 of \\u00a72693 of the Civil Code. It is insisted that the first exception to that subsection, as set forth in \\u00a72694, and given-in charge by the court, was inapplicable, upon the ground that there was no evidence whatever tending to show that the alleged, contract of sale had ever been fully executed; and that, therefore, the court\\u2019s statement of sajd exception as a rule of law for the-guidance of the jury was erroneous and misleading, and calculated, to confuse the jury, to the injury of the defendant. Exception, is taken to the statement by the court of the third exception, upon, the same ground, and further because the court, after charging the jury the third exception, in \\u00a72694, failed to instruct the jury as to what the nature, character, and extent of the part performance of said contract of sale must have been, in order that refusal to comply with said contract would be a fraud by the defendant such as to authorize the court to compel it to perform; and it is further contended that the instruction of the court that said exceptions referred to facts which the jury must determine from the evidence, without indicating how such exceptions referred to facts, or what facts were referred to, confused and misled the jury. (4) Error is also assigned upon the following charge: \\u201cIf the clerk, Hawkins, had no authority to receive the goods, if you believe that the company knew that the fruit was being put into its warehouse and had reason to believe the plaintiff expected pay therefor, you should find for the plaintiff;\\u201d defendant insisting that the charge does not limit the jury to the evidence as the basis for the conclusions of fact which may be reached by them, and that mere knowledge of the defendant that the fruit was being put into its warehouse, and\\u2019 reason for belief on defendant\\u2019s part that plaintiff expected to be paid for it, would not alone suffice to authorize the jury to find for the plaintiff; and that said charge amounted to a direction of a verdict against the defendant. (5) In the 5th ground of the motion it is contended that the court erred in charging the jury that they need not consider the custom as to the amounts generally purchased by the parties, if they found, from the evidence, that plaintiff and defendant had a con tract with reference to the fruit, but that the contract would control. (6) In the 6th ground, error is assigned on the following instruction to the jury: \\u201cYou will consider all the facts incident to this transaction, and whether or not this defendant company knew that these goods were being placed in their warehouse at the time they were; and if you find that they did know this, and that it was being done in pursuance of the contract which the general manager had made with this plaintiff, then the company would be bound; otherwise it would not be bound.\\u201d It is contended that this made the defendant liable without an inspection or acceptance of the goods, and without regard to the statute of frauds, and also without regard to whether the goods delivered corresponded in quality, aggregate quantity of the whole, or relative quantity- of each of the three kinds of goods bargained for. (7) It is insisted that the language of the court in response to an oral request to charge, preferred by the defendant\\u2019s counsel, contained a strong intimation that allowing the goods to be placed in the warehouse was a waiver of the right to reject them, and amounted to an acceptance, although the clerk who received them had no authority to accept them. (8) The assignment of error in the 8th ground is practically the same as that contained in the 3d. (9) In the 9th ground of the motion exception is taken to the following charge: \\u201cIf you find from the evidence that these goods were bought by sample, and that the sample inspected was satisfactory to the buyer, then the defendant would be bound by the inspection he made, unless he understood that later on he had the right to examine other parcels or parts of the same. If you find that the plaintiff, by the request of the defendant, carried samples of these goods to the defendant company, and that they were examined and accepted as satisfactory to the defendant company, and goods of this same class were delivered to the defendant company, and nothing else appeared, then the company would be bound to pay for them.\\u201d (10) Immediately following the charge last quoted, and in response to a suggestion by the defendant\\u2019s counsel that the defendant had the right to refuse the fruit for not corresponding in quantity as well as quality, the judge charged the jury as follows: \\u201cI thought I had covered that. I charge you, gentlemen, that if you find that the plaintiff is mistaken about his right to deliver them all the goods he had of this kind, and that the defendant is right in insisting that it only bought seventy-five cases or whatever you find to be true, then the defendant would have the right to object to the quantity as well as the quality, if done at the proper time.\\u201d The defendant insists that this charge was erroneous because it wholly ignored the effect of the statute of frauds on the alleged oral contract of sale, and in effect instructed the jury that the defendant would be bound to accept the goods when delivered, unless the jury should find that the plaintiff was mistaken about his right to deliver' all the goods he had of the kind, and unless the jury should also find that defendant was right in insisting that it bought only the amount of -goods contended by it. It is insisted that the jury should have been instructed that the defendant had the right, on delivery of the goods, to examine the same for the purpose of determining whether they corresponded in quantity as well as quality with the contract of purchase, before accepting them, and that unless the defendant accepted them, whether its refusal to do so was right \\u2018or wrong, the oral contract of sale was, under the statute of' frauds, incapable of enforcement. It is further insisted that'the charge assumes that the oral contract was valid and binding, and makes the right of the defendant to refuse acceptance of the goods dependent upon the terms of the oral contract; whereas, it is insisted, unless accepted, the oral contract was invalid, under the statute of frauds.\\nNeel & Peeples, for plaintiff in error.\\nColquitt Tinley, Thomas W. Milner & Son, contra.\", \"word_count\": \"5350\", \"char_count\": \"30615\", \"text\": \"Russell, J.\\n(After stating the foregoing facts.) Summarizing the contentions of both parties, the evidence for the plaintiff tended to show that the -manager of the defendant company bargained for all of the canned peaches and tomatoes he had for sale. He testified th$t he expressly informed the manager, Mr. McCormick, that he accepted his bid in preference to that of Mr. Strickland, another buyer of' fruit, upon the ground that Mr. Strickland had only offered to take a portion of his canned goods. He further testified that he delivered the goods according to his contract, at the warehouse of the defendant, and to one of its employees, who received them and stored them in the warehouse. The defendant's manager, Mr. McCormick, testified, that he only contracted for a fixed quantity of each of the three kinds- of fruit offered for sale by the plaintiff; that this was one of the express terms of the contract, and that under no consideration would he have bargained for as large a quantity as the plaintiff claimed to have sold him. He contended, that there had been no delivery of the goods to the defendant; that the clerk who received the goods at the warehouse was not authorized to effect an acceptance, and that as soon as he knew that the fruit was being delivered he refused to accept or pay for it. There was'no conflict as to the price at which the fruit was to -be delivered, nor any evidence tending to show that it was not the quality contemplated by the parties. 'Upon a complete review of the evidence, we find no error in the judgment refusing a new trial. We base our decision upon the following reasons:\\nThe evidence upon the only material points in the case was conflicting, and we have more, than once held that in such a case this court can not interfere with the finding of the jury upon the facts.\\nThere was no such error in the instruction of the court with reference to the application of the statute of frauds to the evidence submitted as will authorize a reversal of the judgment. Considered in dismembered fragments, the instructions of -the court might appear subject to the objections urged by counsel for the plaintiff in error, but when the charge upon this subject is considered as a whole and in the light of the evidence, there was no error in the court's giving in charge to the jury, in connection with paragraph 7 of \\u00a72G93 of the Civil Code, the three exceptions provided by \\u00a72694. It is now strenuously insisted by the learned counsel for plaintiff in error that the court erred in presenting the second exception to the jury. It is apparent to any one that the evidence in behalf of the plaintiff required that the jury be instructed that although the value of the goods might amount to more than fifty dollars, the contract of sale would not have to be in writing, where there had been performance on the part of .the plaintiff and acceptance, as the plaintiff testified, on the part of the defendant. And we think, moreover, there was no error in further charging the jury that the contract of sale need not be in writing if the jury believed the contract had been fully executed. This was.held by the Supreme Court in Johnson v. Watson, 1 Ga. 348, before the passage of the act now embodied in \\u00a72694; and it was further held, in the same case, that the question of delivery by the vendor and acceptance by the vendee is one of fact for the jury. As stated by Chancellor Kent (2 Kent's Com. 491), \\\"when the terms of sale are agreed on and the bargain is struck, and everything which the seller has to do with the goods is completed, the contract of sale becomes absolute, and the property and risk of accident to the goods rests in the buyer.\\\" See also Woodward v. Solomon, 7 Ga. 246. If the jury believed the testimony in behalf of the plaintiff, the contract was executed; and the jury were properly instructed to apply the first exception mentioned in \\u00a72694. It may be that the court might have more fully instructed the jury, as insisted by counsel for plaintiff in error, as to the applicability of the third exception, but in view of .the evidence of the plaintiff and the fact, as demonstrated by the' verdict, that the jury rested their verdict upon his testimony, the omission of the court in this regard would not be error of which defendant could complain; for the reason that the exception is provided for the benefit of plaintiffs, to be used in resistance of a plea that the contract is not binding because not in writing.\\nConflict in the evidence arose upon the subject of the quantity of the goods sold, and whether the goods were delivered and accepted. Plaintiff in error insists, that it was indisputably established that the goods were never accepted, but were rejected the moment its authorized agent was informed of the quantity tendered and insisted on by Mr. Jackson, the plaintiff; that the clerk, Hawkins, had no authority to accept the goods for defendant, but merely the duty of reporting the same to the general manager, McCormick; and that upon his reporting in this instance, McCormick rejected the goods and refused to accept the' same. It is of course well settled that mere receipt of goods without acceptance will not meet the requirements of the statute of frauds Loyd v. Wight, 20 Ga. 578; s. c. 25 Ga. 215; Tiedeman on Sales, \\u00a766. Nor is an agent who is merely authorized to receive and count goods, or weigh them as delivered, the agent of the buyer to so accept the goods as to bind his principal. It is also true that acceptance can not be inferred from mere receipt of goods into the possession of the buyer, provided he does not retain them long\\u00e9r than may be reasonably necessary to enable him to examine their quality and quantity. 20 Cyc. 249. Upon these well set- tied principl\\u00e9s the learned counsel for the plaintiff in error based most of the contentions urged in his brief. We must not, however, lose sight of the fact that these contentions are not based upon the evidence for the plaintiff, and that the jury had the right to give the preference to his testimony. According to this testimony, he delivered to the defendant at its place of business exactly what he had contracted to sell, both as to quantity and quality; and quantity and quality both being complete, and the goods delivered at the stipulated time and for the stipulated price, the defendant had no right to reject, nor any reason for inspection. If goods of exactly the quantity and quality bargained for were delivered according to the terms of the contract, it became absolutely immaterial whether the agent who received them had or did not have the right to accept them. Acceptance followed necessarily on the impossibility of rejecting the goods contracted for, and to decline to take them would have been a fraud.\\nSeveral exceptions are taken to certain portions of 'the charge, in which it is assimied that the contentions of the defendant were not sufficiently presented to the jury; and it is also alleged that certain excerpts from the charge either contain intimations of opinion by the court, or assume facts to be in evidence which were not supported by the testimony. We have referred to several of these in the statement of facts preceding this case, but .any further discussion than is contained in the headnotes is unnecessary. Viewing them in the light of the charge as a whole, these exceptions are without merit. Such are the assignments of error contained in the 1st, 2d, 5th, 7th, 8th, and 9th grounds of the motion for new trial.\\nMuch stress is laid on the 4th ground of the motion for new trial. The excerpt from the charge complained of (which is quoted in the statement of the case) immediately follows the instruction to the jury that the company would be liable only provided it appeared that the goods were actually accepted by the \\u2022company, and precedes the instruction complained of in the 10th ground of the motion for new trial. Judged in this connection, the jury could not have been misled or confused into believing otherwise than that it was absolutely essential for the plaintiff to \\u2022demonstrate by the evidence that the defendant accepted the goods tendered by him, nor led to suppose that mere knowledge on the part of the defendant that the fruit mentioned was being put into its warehouse proved that the defendant accepted it and expected to pay for it; the court having more than once instructed the jury that the plaintiff's right was dependent upon compliance with his contract and acceptance by the buyer.\\nWhat we have just said in reference to the 4th ground of the motion is clearly applicable to the 6th. The charge complained of in the 6th, however, relieves the ambiguity, if any existed, in the instruction complained of in the 4th ground; for the court expressly charged the jury that they could consider whether the defendant knew that the goods were being placed in its warehouse, and if the jury should find that it did know it, and that it was being done in pursuance of their contract, the company would be bound, otherwise it would not be bound. What could be plainer? 'If the delivery was being made in compliance with the contract, as testified to by the plaintiff, the company would necessarily be bound. The defendant could not ask to be relieved except upon the testimony of its manager that no such contract was made and that the contract that was made was'not complied with.\\nThere is no merit in the .7th ground of the motion. The excerpt complained of was addressed to the jury in response to an oral request made by the defendant's counsel, who asked the court to charge the jury that if the company did know that the goods were being placed in its warehouse by Mr. Jackson for the purpose of delivery, it would not bind the company, if it understood that it still had the right to reject them. The court assented to this proposition (stated in the presence of the jury), by using the word \\\"yes,\\\" thus giving it his sanction, but very properly qualified the instruction by adding that \\\"that would depend upon the additional fact whether or not the company had the right, after the goods were actually placed in its warehouse, to examine the goods and accept or reject them.\\\" The word \\\"that,\\\" in the charge quoted, refers to the proposition stated by counsel, and sanctioned by the court by the use of the word \\\"yes\\\" The word \\\"yes\\\" relates back so as to mean that the company would not be bound, if it understood that it had the right to reject the goods; and the qualification of the court simply meant that while, as before stated, the acceptance depended upon the defendant's understanding of its right to reject (which was not a correct statement of law ap plicable to the evidence), the evidence must show a real right to reject. The court, therefore, while sanctioning and indorsing to the jury the proposition stated by the defend\\u00e1nt's counsel, very properly qualified this statement (adopted pro tanto as his own), by further instructing the jury, in effect, that the understanding of the defendant was, after all, dependent upon and subordinate to its actual rights to accept or reject the goods, as fixed by the contract, whatever the jury might find, from the evidence, that contract to be. As there was no contention on the part of either party that he misunderstood the contract, nor any evidence showing that either party was known by the other to be acting under a misapprehension of the contract, the understanding of either party could not affect the contract, and could be of no use to the jury except in so far as it might aid in enabling them to find the true contract.\\nThe complaints urged against- the excerpt from the charge, on which error is assigned in the 10th ground of the motion for new trial appear to us groundless, on consideration of the entire charge and the circumstances under which the instruction complained of was given. It appears in the record that the court had practically completed the charge to the jury, and that first the defendant's counsel and then the plaintiff's attorney had made oral requests for additional instructions. The only request refused was one preferred by the plaintiff's counsel. Immediately following the charge which is assigned as error in the 9th ground of the motion (and which will be found in the statement of the case), defendant's counsel suggested, \\\"That leaves out altogether the question of quantity. They had the right to refuse them for not corresponding in quantity as well as quality.\\\" Upon this suggestion of counsel on the subject of the quantity, the court replied to counsel, \\\"I thought I had covered that;\\\" and proceeded, in compliance with the suggestion, to relieve the objection of the defendant. It was addressed to only one point, but nothing more would have been required even if the request had been in writing; and the request might have been declined even if in writing, because the subject had already been fully covered in the charge to the jury. The assignments of error depend (a) partly upon the assumption that it is necessary for a trial judge to repeat, in treating of each and every phase of the case, and in every possi ble connection to reiterate, the law applicable to all of each .party's contentions; (&) partly upon an alleged intimation on the part of the judge; and (c) partly upon verbal criticism of the language employed in the instruction to which exception is taken.\\n(a) The judge, having already fully explained the purpose and effect of the statute of frauds, was not required to repeat these instructions to the jury in connection with a charge invoked upon a different subject and one wholly disconnected with defendant's defense under the statute of frauds. Especially is this true where the request was preferred by him who now complains, and where the request was directed expressly to only one point in the case, and was fully complied with by the court. The charge complained of in this ground of the motion did not ignore the effect of the statute of frauds, or withdraw from the jury the defendant's defense based thereon, although the judge did not refer to the subject in connection with this instruction. The plaintiff's case, according to his testimony, had but one foundation,, a contract of sale fully executed on his part; the defendant's defense traveled on two legs, \\u2014 the one, the plea that there was no completed contract of sale nor acceptance of the goods; the second leg, the plea in which the statute of frauds was invoked as a defense. In one view of the defendant's case the effect of the statute of frauds was entirely immaterial. If the contract was for a limited quantity of the canned goods as a whole, and for a limited quantity relatively of each kind, and the plaintiff, in violation of the contract, attempted to deliver a larger quantity as a whole and different quantities relatively of each from those contracted to be delivered, and the defendant, as would have been its right, declined to accept them, no recovery could be had against the defendant. And this without regard to the defendant's plea of the statute of frauds. The plaintiff's failure to comply with the provision in reference to the quantity, and the defendant's rightful refusal to accept the articles tendered, would defeat the sale. The statute of frauds was immaterial to either view of the plaintiff's case as made by him in the record. If the goods were bought and delivered, as testified, according to contract, he would be entitled (regardless of the provisions of \\u00a72693 of the Civil Code) to recover the purchase-price. If the contract of sale was as testified to in behalf of the defendant, and there was no acceptance by the defendant of the goods tendered, then (regardless of the operation of the statute of frauds) the plaintiff could not recover. When we consider that the portion of the charge now under consideration was made supplementary to a presentation of one phase of the plaintiff's contention as requested by plaintiff's counsel, expressly to present defendant's claim of the right to reject the goods on account of defect in quantity, and for the purpose of preventing any limitation or restriction of the defendant's right to inspect the goods and ascertain whether they corresponded in quantity as well as quality with those purchased hy the defendant, and further discover from the record that the jury had been fully and, we think, 'correctly instructed as to the law applicable to the defendant's plea of the statute of frauds, we think it is quite clear that the intelligence of 'the jury could safely be trusted to remember that the defendant-had two pleas, and to recall and apply the instructions already given hy the court, on the subject of the statute of frauds, to the evidence applicable to the defense based on \\u00a72693 of the Civil Code.\\n(b) The language of the instruction in question does not \\\"make the legal right of the defendant to refuse acceptance of the goods dependent upon the terms of the oral contract as found by the jury,'' as insisted by plaintiff in error; because, as stated above, the court is, at j:his point, onlj- presenting the law applicable to one issue in the case, to wit, whether there was or was not a sale of the goods as insisted by the plaintiff. But there is nowhere any intimation of opinion upon the facts by the court. This ground.of the exception is destroyed when the charge to which exception is taken is Tead.\\n(c) The instruction now under review may be subject to verbal criticism. The trial judge was perhaps too' complaisant in his language in referring to the sharp conflict between the parties. He was perhaps too much imbued with the spirit which it is the duty of the jury to exercise in case of conflict in the evidence,\\u2014 that of harmonizing conflicting testimony so as to make all-the wetnesses speak the truth. No exception is taken to this. But if instead of saying, \\\"if you find that the plaintiff is mistaken about his right to deliver,\\\" etc., and that \\\"the defendant is right in insisting that,\\\" etc., the judge had substituted more vigorous and explicit language, so as to have charged the jury that if they found from the evidence that the plaintiff was not to deliver all the goods of this kind that he had, and if they believed that the defendant bought only 75 cans (or whatever they might find to be the number), then the defendant would have a right to object to the quantity as well as the quality, if it did so at the proper time, the only possible objection would have been removed. The jury might possibly have been led, by the language used, to suppose that they could settle the rights of the parties according to their opinion of right, instead of by the testimony as they found it to be true; but no exception is based upon that ground. The exception is taken to the words \\\"this kind,\\\" in the charge; it being insisted that the words \\\"all the goods of this kind\\\" furnish no indication as to whether the court meant' table peaches, pie peaches, or tomatoes. We can not approve of this exception; because it appears, in the evidence for the plaintiff, that he sold to the defendant company all the canned goods he had, and that he declined to sell part of them either to Strickland or to the defendant, and it further appears that these canned goods embraced only pie peaches, table peaches, and tomatoes, iso other goods are hinted at in the testimony, except canned goods; and if he sold all he had of \\\"this kind,\\\" it is undisputed that he must have sold, not only \\\"table peaches\\\" and \\\"pie peaches,\\\" but \\\"tomatoes\\\" as well; and the exception is without merit.\\nWe are satisfied, at the end of a most thorough and painstaking investigation of the merits of every assignment of error, and of every argument in its support, that our respect for the profound legal ability of the learned counsel for plaintiff in error has caused us to search more diligently (if it be possible) than usual for every error pointed out in the record and brief, and to unduly lengthen our discussion of the points involved. After all, we find no error which requires the grant of a new trial. After all, in a fair trial (but with conflicts irreconcilable in the evidence), the jury preferred to base its verdict on the testimony for the plaintiff, instead of on that in behalf of the defendant.\\nJudgment affirmed.\"}"

ga/12640326.json

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+"{\"id\": \"12640326\", \"name\": \"CICCIO v. CITY OF HEPHZIBAH.\", \"name_abbreviation\": \"Ciccio v. City of Hephzibah\", \"decision_date\": \"2008-01-08\", \"docket_number\": \"No. AO7A2488.\", \"first_page\": \"245\", \"last_page\": \"246\", \"citations\": \"656 S.E.2d 245\", \"volume\": \"656\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"CICCIO\\nv.\\nCITY OF HEPHZIBAH.\", \"head_matter\": \"CICCIO\\nv.\\nCITY OF HEPHZIBAH.\\nNo. AO7A2488.\\nCourt of Appeals of Georgia.\\nJanuary 8, 2008.\\nCapers, Dunbar, Sanders & Bruckner, Emory Freddie Sanders Sr., Ziva Peleg Bruckner, Augusta, for Appellant.\\nVictor Hawk, Augusta, for Appellee.\", \"word_count\": \"1001\", \"char_count\": \"5916\", \"text\": \"MILLER, Judge.\\nIn November 2006, the Hephzibah City Commission (the \\\"Commission\\\") voted to remove Peter Ciccio from his post as a member of the Commission based on the removal provisions contained in the Charter of the City of Hephzibah (the \\\"Charter\\\"). Following a hearing, the trial court affirmed the Commission's decision to remove Ciccio from his post. Ciccio appeals, claiming that the trial court erred in determining that the Charter authorized his removal as a Commissioner based on the undisputed facts. We agree and reverse.\\n\\\"When a question of law is at issue, as here, we owe no deference to the trial court's ruling and apply the `plain legal error' standard of review.\\\" (Citation omitted.) Suarez v. Halbert, 246 Ga.App. 822, 824(1), 543 S.E.2d 733 (2000). So viewed, the undisputed facts show that Ciccio was elected to the Commission in November 2003, and he took office in January 2004. One month later, on February 10, 2004, Ciccio was charged with theft by receiving, based on acts he was alleged to have committed in 2003. In October 2006, Ciccio pled guilty to theft by receiving, and he was sentenced (without an adjudication of guilt) to five years of probation under the First Offender Act. OCGA \\u00a7 42-8-60 et seq. At that time, Ciccio admitted that he had facilitated the sale of a tractor that had no certificate of origin, bill of sale, or keys, and that he should have known the tractor had been stolen.\\nOn November 10, 2006, and as a result of Ciccio's admission of guilt, the Commission voted unanimously to remove him from his post pursuant to the removal provisions of the Charter. The trial court affirmed Ciccio's removal, finding that \\\"[w]hile there is clearly nothing that would require the Commission to remove . Ciccio, they were [vvithlin their legal authority to do [so].\\\"\\nCiccio claims that the removal provisions of the Charter did not authorize the Commission to remove him from his position as a duly-elected member of the Commission. We agree,\\nSection 19 of the Charter provides that any member of the Commission may be removed, subject to notice and a hearing, upon the vote of the remaining Commissioners finding that such member (i) was guilty of \\\"misfeasance or malfeasance in office,\\\" (ii) had abandoned his or her office or \\\"neglect[ed] to perform the duties thereof,\\\" or (iii) had failed \\\"for any other cause to perform the duties, of office as required by state law.\\\"\\nDespite the City's claim that Ciccio committed \\\"misfeasance or malfeasance in office\\\" by not admitting his guilt until October 2006, Georgia courts have narrowly defined such terms in the context of removal proceedings to include only an official act or one done under the color of office. See Cargile v. State, 194 Ga. 20, 24(2), 20 S.E.2d 416 (1942); Phillips v. State, 127 Ga.App. 499, 500(1), 194 S.E.2d 278 (1972) (\\\"if a judge commits an armed robbery or a stock swindle, he has committed a crime but not the crime of malpractice in office\\\"). Here, Ciccio's conduct of maintaining his innocence prior to pleading guilty in 2006 was indisputably not an \\\"official act\\\" or one done \\\"under the color of his office\\\" as a member of the Commission. Similarly, there was no evidence that Ciccio's failure to admit his guilt immediately upon taking office resulted in an abandonment of such office or prevented him from performing his duties as a member of the Commission.\\nFinally, the City claims that Ciccio's removal was proper because he failed \\\"to perform the duties of office as required by state law\\\" in that his refusal to admit guilt prior to his plea was an \\\"evasion\\\" of the law and proscribed by Georgia's Code of Ethics for Government Service. OCGA \\u00a7 45-10-1 (\\\"Any person in government service should . [u]phold the . laws . and never be a party to their evasion.\\\"). We note, however, that at all times after his indictment, Ciccio was entitled by both the United States and Georgia Constitutions to a jury trial of the crime with which he was charged. U.S. Constitution, Amendment VI; Ga. Const. of 1983, Art. I, Sec. I, Par. XL As a result, Ciccio was not guilty of \\\"evading\\\" the law after he became a member of the Commission merely because he availed himself of the opportunity to have his case tried before a jury until the time that he entered his guilty plea. While we do not condone Ciccio's conduct, his acts did not subject him to removal pursuant to the terms of the Charter, but would have been more appropriately the subject of a recall petition pursuant to OCGA \\u00a7 21-4-1 et seq.\\nJudgment reversed.\\nBARNES, C.J., and SMITH, P.J., concur.\\nThe Charter also allows removal of a Commissioner who had been convicted of a \\\"crime involving moral turpitude,\\\" but the Commission did not seek to remove Ciccio based on this provision, apparently recognizing that where a person sentenced to probation under the First Offender Act completes such probation without violation, he is not considered to have a criminal conviction. Witcher v. Fender, 260 Ga. 248, 249, 392 S.E.2d 6 (1990); see also Priest v. State, 261 Ga. 651, 652(2), 409 S.E.2d 657 (1991) (\\\"the entry of a guilty plea under OCGA \\u00a7 42-8-60 is not a `conviction' within the usual definition of that term\\\") (citation omitted).\\nWe note that while Georgia's Recall Act (OCGA \\u00a7 21-4-1 et seq.) provides a broader definition of \\\"malfeasance in office,\\\" the Commission did not comply with the procedures contained in that Act-apparently because they determined that removing Ciccio pursuant to the removal provisions of the Charter would be more efficient and cost-effective than the less drastic act of pursuing his recall by the voters who had duly elected him three years previously.\"}"

ga/1272417.json

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+"{\"id\": \"1272417\", \"name\": \"Coker v. City of Tifton\", \"name_abbreviation\": \"Coker v. City of Tifton\", \"decision_date\": \"1911-11-07\", \"docket_number\": \"3641\", \"first_page\": \"66\", \"last_page\": \"66\", \"citations\": \"10 Ga. App. 66\", \"volume\": \"10\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T23:13:54.542582+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Coker v. City of Tifton.\", \"head_matter\": \"3641.\\nCoker v. City of Tifton.\\nDecided November 7, 1911.\\nCertiorari; from Tift superior court \\u2014 Judge Thomas.\\nJuly 22, 1911.\\nJ. B. Murrow, J. J. Murray,, for plaintiff in error.\\nFulwood & Murray, contra.\", \"word_count\": \"125\", \"char_count\": \"693\", \"text\": \"Hill, C. J.\\n1. Questions involving the validity of a municipal ordinance and the jurisdiction of the trial court, not made in that court, and raised for the first time on certiorari in the superior court, will not be considered by the latter court, or by this court. Sutton v. Washington, 4 Ga. App. 30 (60 S. E. 811) ; S., F. & W. Ry. Co. v. Hardin, 110 Ga. 433 (35 S. E. 681).\\n2. No error of law appears, and the verdict fully supports the finding of the trial court. Judgment affirmed.\"}"

ga/1288004.json

@@ -0,0 +1 @@
+"{\"id\": \"1288004\", \"name\": \"Walker v. Georgia Railroad; and vice versa\", \"name_abbreviation\": \"Walker v. Georgia Railroad\", \"decision_date\": \"1914-09-23\", \"docket_number\": \"5371, 5372\", \"first_page\": \"238\", \"last_page\": \"239\", \"citations\": \"15 Ga. App. 238\", \"volume\": \"15\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T18:14:55.025279+00:00\", \"provenance\": \"CAP\", \"judges\": \"Roan, J., absent.\", \"parties\": \"Walker v. Georgia Railroad; and vice versa.\", \"head_matter\": \"5371, 5372.\\nWalker v. Georgia Railroad; and vice versa.\", \"word_count\": \"457\", \"char_count\": \"2701\", \"text\": \"Russell, C. J.\\n1. The plaintiff introduced testimony in support of her petition. There was no motion to award a nonsuit, and the ease was not such that the judge deemed it his duty, of his own motion, to order a nonsuit. The defendant introduced testimony to the effect that the plaintiff's daughter was a mere trespasser, and that its servants in charge of its trains had no knowledge of her presence or danger. However, in the state of the record, it does not appear that the jury were compelled to reach this conclusion to the exclusion of any other reasonable inference; since there was some testimony from which they might have been authorized to infer that the situation and the surrounding circumstances were such that the agents of the defendant did in fact know of the presence and danger of the plaintiff's daughter. This would raise an issue of fact, soluble only by the finding of the jury. Eor this reason the court erred in directing a verdict.\\n2. The defendant excepts, by cross-bill, to the court's refusal to dismiss the plaintiff's case upon an oral motion, for the reason that the plaintiff's petition, as qualified by the admission, made by plaintiff's counsel in his opening statement to the jury, that the homicide did not occur on a public crossing, set forth no cause of action against the defendant. If the motion be treated as a general demurrer, the court properly overruled it. It was a speaking demurrer, because it required the statement by counsel of a fact extraneous of the petition; and even if the anticipatory statement of facts given by counsel for the plaintiff, and made in stating the case to the court and the jury, may, in a particular case, constitute such an admission in judicio, at variance with the allegations of the petition, as to authorize the award of a nonsuit before the introduction of any testimony whatever, still the- defendant is not entitled to nonsuit the plaintiff because of an admission of the plaintiff's counsel (in his opening and in detailing what the plaintiff expects to prove) which varies the circumstances upon which the plaintiff insists the defendant's liability depends, if the allegations of the petition upon this point are properly amendable so as to conform with the statement, and these allegations are in fact amended before the introduction of testimony.\\nDecided September 23, 1914.\\nAction for damages; from city court of Bichmond county\\u2014Judge Y. F. Eve. June 25, 1913.\\nHenry G. Roney, for plaintiff.\\nJoseph B. & Bryan Gumming, James M. Hull Jr., for defendant.\\n'udgment reversed on the main bill of exceptions, and affirmed on the cross-bill.\\nRoan, J., absent.\"}"

ga/1288160.json

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+"{\"id\": \"1288160\", \"name\": \"ARMOUR FERTILIZER WORKS v. ABEL\", \"name_abbreviation\": \"Armour Fertilizer Works v. Abel\", \"decision_date\": \"1914-09-23\", \"docket_number\": \"5619\", \"first_page\": \"275\", \"last_page\": \"280\", \"citations\": \"15 Ga. App. 275\", \"volume\": \"15\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T18:14:55.025279+00:00\", \"provenance\": \"CAP\", \"judges\": \"Roan, J,, absent.\", \"parties\": \"ARMOUR FERTILIZER WORKS v. ABEL.\", \"head_matter\": \"5619.\\nARMOUR FERTILIZER WORKS v. ABEL.\\nThere was .no error in the court\\u2019s rulings upon the evidence, or in the charge to the jury. The evidence authorized the verdict, and there was no error in refusing a new trial.\\nDecided September 23, 1914.\\nComplaint; from city court of Nashville\\u2014J. Z. Jackson, judge pro hae vice. February 9, 1914.\\nR. D. Smith, Lovett & Murray, for plaintiff.\\nHendricks & Hendricks, for defendant.\", \"word_count\": \"2194\", \"char_count\": \"12432\", \"text\": \"Russell, C. J.\\nArmour Fertilizer Works brought suit against Abel upon a note for $1,320.24, upon which a balance of $809.74 and interest was claimed to be due, and alleged that notice binding the defendant for payment of attorney's fees had been given. The defendant pleaded that the note had been fully paid by various sums paid to the plaintiff and certain of its agents, with the exception of $735.75, for which he alleged he gave a new note on February 1, 1912, which operated to discharge his indebtedness, if any, upon the note in suit. By amendment, the defendant pleaded in recoupment that the plaintiff was indebted to him in the sum of $776.17, on account of the fact that he had overpaid the plaintiff and that the plaintiff was also indebted to him for certain commissions. The defendant further pleaded that S. J. Shippey, P. E. Belt, and G. Y. Savitz were duly authorized agents of the plaintiff to make demands and receive payment for guano sold by the defendant in 1911, and that the note sued on was part of a guano transaction for that year. From a statement of account attached to the defendant's answer, it appears that the payments which he claimed to have made were made, some of them to the company directly, some to P. E. Belt, and one payment by a check dated September 25, 1911, to S. J. Shippey. Upon the trial the issue finally revolved around the question as to whether the payment to Shippey of the check, amounting to $828.93, was a payment to Shippey individually or a payment accepted by Shippey as a duly authorized agent of the defendant authorized to make the collection in its behalf. It can well be said that the case narrowed to the single issue as to whether Shippey was such an agent of the defendant as was authorized to accept this particular check in its behalf, and as to whether the check was actually paid to him as such agent. Shippey admitted receipt of the check, but claimed that it was in payment for cotton which he sold the defendant, and not a payment on the account of the Armour Fertilizer Works, due by the defendant. The jury returned a general verdict for the defendant, but did not find in his favor on the plea of recoupment.\\nThe original motion for a new trial is based upon the general grounds that the verdict is contrary to law, contrary to evidence, and without sufficient evidence to support it, the several grounds of the amendment to the motion are based upon objections made to testimony or exceptions to the charge of the court, and present the single question as to whether there was sufficient evidence to authorize the inference that Shippey was an agent of the plaintiff; in other words, it is insisted that at the time the questions were asked to which objections were made there was nothing in the pleadings in the case authorizing proof that Shippey was an agent of the plaintiff, and that there was no evidence that he was such agent or authorized to receive payments in its behalf. It is specifically alleged in the defendant's answer that Shippey was agent of the Armour Fertilizer Works, and in the account attached thereto is an item of payment alleged to have been made to him as such agent, and for that reason we are of the opinion that testimony as to any circumstance tending to show that Shippey was in fact an agent was relevant in the investigation, and if, after all the testimony was in, sufficient evidence had been introduced to authorize the jury to infer that Shippey was such an agent as was authorized to make the collection for the plaintiff, then the instructions of which complaint is made were not erroneous. In other words, the objections of counsel for the plaintiff in the lower court were all based upon the proposition that there was not sufficient evidence that Shippey was such an agent as that the plaintiff was bound by his acts or sayings, or by the course of dealing between the defendant and Shippey.\\nOver the objection of the plaintiff, questions were propounded to the defendant by his counsel, and answered by him as follows: Q. \\\"Look at this check here dated September 25, 1911, for $828.93, and in the left-hand corner of it marked 'For Armour Fertilizer Works/ and state to whom it was given?\\\" A. \\\"It was given to Mr. Shippey.\\\" Q. \\\"What did you give it to him for?\\\" A. \\\"In payment for fertilizers.\\\" Q. \\\"For whom?\\\" A. \\\"Armour Fertilizer Works.\\\" The ground of the objection was that it had not been shown that Shippey was an agent of the Armour Fertilizer Works authorized to collect money in its behalf. It is very plain, under the defendant's plea and the exhibits thereto, that this testimony was admissible. It bore directly upon the defendant's contention, and the defendant had already testified that all his dealings with the plaintiff were through Shippey. It appeared _later in the evidence, that there was a notation upon the check itself, \\\"For Armour Fertilizer Works,\\\" and the genuineness of this notation was a question for the jury; if the jury believed that the notation was made on the cheek at the time it was accepted, the check itself might be a circumstance of more or less significance on the subject of agency. Of course, we bear in mind that payment to Shippey would not be good, no matter what appeared on the check, unless it appeared that Shippey was in fact the agent and authorized to make the collection, but testimony that the check was given and accepted in payment of a debt due to the Armour Fertilizer-Works might tend to corroborate the evidence of agency. The court did not err in allowing the testimony at the time it was introduced, even if it should have been excluded later, if a motion to exclude it had been made. As later appears from the evidence, however, Shippey admitted that he acted as a supervisor for the Armour Fertilizer Works in looking after the defendant, and that he took the contract between them. The defendant testified that Shippey gave him instructions in all that he did, and that Shippey saw to his accounts with the Armour Fertilizer Works being checked up, and presented to him telegrams from the Armour Fertilizer Works to Shippey relative to his accounts. Shippey and the defendant both agree that Shippey was a collecting agent for the Armour Fertilizer Works, and that he was authorized to collect from the defendant. The conflict between them is as to when that agency began. Shippey contends that it did not begin until after September 25, 1911 (the time of the giving of the check), and the defendant contends that it began at the time of the contract.\\nIt is contended that the court erred in allowing the defendant to testify that Shippey gave him instructions for Armour Fertilizer Works in all that he did, and made demand for money in settlement of his account with the Armour Fertilizer Works, and that Shippey checked up his accounts with the Armour Fertilizer Works; on the ground that there was nothing in the record to show that Shippey had any authority to act for Armour Fertilizer Works. It was not improper to allow this testimony. In the state of the record it appears that the main point to be determined by the jury was whether Shippey was such an agent as was authorized to make the collection for the Armour Fertilizer Works, and any testimony which bore upon their dealings in connection with the transaction, and which tended to show that Shippey did in fact act as agent, was relevant to the issue. It was admitted that Shippey did make collections from the defendant for the Armour Fertilizer Works, and it was for the jury to determine whether Shippey or the defendant was correct as to the incipiency of the agency.\\nIt is insisted that the court erred in admitting in evidence two checks signed by the defendant, as follows: one dated September 25, 1911, for $828.93, payable to S. J. Shippey, and having a notation thereon \\\"For Armour Fertilizer Works,\\\" and the other dated October 21,1911, for $925.15, payable to S. J. Shippey, and having a notation thereon \\\"B. C.\\\" For the reasons set forth above, it was not error to admit the first check in evidence. It was not error to admit in evidence the check for $925.15, because it was contended by Shippejr that the only check given him in the fall of 1911 by the defendant was in payment for cotton, and this check was introduced by the defendant as being the check given Shippey for cotton, and in support of his contention that two checks were given, one for cotton, with the notation \\\"B. 0.\\\" thereon, and one for account of the Armour Fertilizer Works, with a notation to that effect thereon. Both cheeks bore strongly upon the issues involved, and the defendant was entitled to have both of them submitted to the jury.\\nError is also assigned because the court overruled the motion of the plaintiff to direct a verdict. It is contended that there is nothing in the evidence to show that payment was made to an authorized agent of the plaintiff, and that the note introduced showed liability to the plaintiff. It is fundamental that it is never error to refuse to direct a verdict. As a matter of fact, there was evidence tending to show that the plaintiff owed the defendant a certain sum as commissions for selling guano, and also evidence tending to show that the payment made was made to an authorized agent.\\nIt is also contended that the court erred in charging the jury as follows: \\\"The relation of principal and agent arises whenever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies, with full knowledge, the acts of another done in his behalf. The relation of principal and agent, therefore, can not arise unless a person expressly or by implication authorizes another to act for him or subsequently ratifies, with full knowledge, the acts of another done in his behalf. The ratification, if any, of a particular act is coextensive with the act, and only makes the person who performed the act a special agent for the purpose.\\\" \\\"A principal is bound by all the acts of his agent within the scope of his authority, and if the agent exceeds his authority the principal can not ratify in part and repudiate in' part; he must either adopt the whole or none. The principal is' bound by all the representations of his agent in the business of his agency, and by his wilful concealment of material facts, although they were unknown to the principal and known only by the agent.\\\" It is contended that there was no evidence authorizing any charge on the law of agency. The instructions afford the plaintiff in error no cause for complaint. The authority of an agent in a particular instance need not be proved by express contract; it may be established by the principal's conduct and course of dealing, and if one holds out another as his agent, and by_ his course of dealing indicates that the agent has certain authority, and thus induces another to deal with his agent as such, he is estopped to deny that the agent has any authority which, 'as reasonably deducible from the conduct of the parties, the agent apparently has. Germain Company v. Bank of Camden County, 14 Ga. App. 88 (80 S. E. 302). Neither was it necessary to show, as contended by the plaintiff in error, that the Armour Fertilizer Works knew of this specific payment of $828.93, if it appeared that Shippey was in fact their agent at the time the payment was made, if it was made. If Shippey was the agent authorized to make collections on September 25, 1911, as contended by the defendant, and the defendant paid him the money, it was none of the defendant's concern what Shippey did with the money, nor was it his duty to notify the Armour Fertilizer Works that he had paid the money to Shippey.\\nIt appears to us that the plaintiff has had a fair and impartial trial, and that no errors were committed by the court, and it is, therefore, our duty to affirm the judgment. In giving the Case this direction it is not necessary to discuss the motion to dismiss the bill of exceptions. Judgment affirmed:.\\nRoan, J,, absent.\"}"

ga/1306074.json

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+"{\"id\": \"1306074\", \"name\": \"Johnson v. Johnson\", \"name_abbreviation\": \"Johnson v. Johnson\", \"decision_date\": \"1917-11-01\", \"docket_number\": \"8525\", \"first_page\": \"167\", \"last_page\": \"167\", \"citations\": \"21 Ga. App. 167\", \"volume\": \"21\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T17:32:40.786847+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wade, C. J., and Luke, J., concur.\", \"parties\": \"Johnson v. Johnson.\", \"head_matter\": \"8525.\\nJohnson v. Johnson.\\nDecided November 1, 1917.\\nComplaint; from city court of Baxley \\u2014 Judge Sellers. December 30, 1916.\\nPadgett & Watson, for plaintiff. W. W. Bennett, for defendant.\", \"word_count\": \"151\", \"char_count\": \"829\", \"text\": \"Jenkins, J.\\n1. A decision on the first writ of error is binding as the law of the case on a second writ of error.. Gray v. Conyers, 70 Ga. 349; King v. Davidson, 72 Ga. 192; Saulsbury v. Iverson, 73 Ga. 733; Western & Atlantic R. Co. v. Third National Bank, 125 Ga. 489 (54 S. E. 621); Southern Bell Tel. Co. v. Glawson, 140 Ga. 507 (79 S. E. 136).\\n2. The law of this particular case having been fixed and determined in its formet adjudication by this court (Johnson v. Johnson, 14 Ga. App. 194, 80 S. E. 660), the overruling of the plaintiff's motion for a new trial was not erroneous.\\nJudgment affirmed.\\nWade, C. J., and Luke, J., concur.\"}"

ga/1306110.json

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+"{\"id\": \"1306110\", \"name\": \"Peeples & Shepherd v. Butler, Stevens & Bell\", \"name_abbreviation\": \"Peeples & Shepherd v. Butler, Stevens & Bell\", \"decision_date\": \"1917-11-14\", \"docket_number\": \"9023\", \"first_page\": \"310\", \"last_page\": \"310\", \"citations\": \"21 Ga. App. 310\", \"volume\": \"21\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T17:32:40.786847+00:00\", \"provenance\": \"CAP\", \"judges\": \"Bloodworth and Harwell, JJ,, eoneur.\", \"parties\": \"Peeples & Shepherd v. Butler, Stevens & Bell.\", \"head_matter\": \"9023.\\nPeeples & Shepherd v. Butler, Stevens & Bell.\\nDecided November 14, 1917.\\nComplaint; from city court of Nashville \\u2014 Judge Christian. \\u2018 June 11, 1917.\\nJoseph A. Alexander, for plaintiffs in error.\\nHendricks, Mills & Hendricks, contra.\", \"word_count\": \"206\", \"char_count\": \"1217\", \"text\": \"Broyles, P.' J.\\n1. Under repeated rulings of tliis court and of the Supreme Court, a ground of a motion for a new trial complaining of the admission of testimony must be complete within itself, and not such as to require the reviewing court to refer to the brief of evidence or other parts of the record in order to determine the question of the admissibility of the testimony. A ground of a motion for a new trial which complains of the admission of certain specified testimony upon the trial of the case must state the name of the witness whose testimony is complained of. Under the foregoing rulings those grounds of the motion for a new trial which complain of the admission of certain specified testimony will not be considered. Hayes v. State, 18 Ga. App. 68 (88 S. E. 752).\\n2. The court did not err in directing a verdict for the plaintiffs, as, under the evidence submitted, no other finding was legally possible.\\nJudgment affirmed.\\nBloodworth and Harwell, JJ,, eoneur.\"}"

ga/1381425.json

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+"{\"id\": \"1381425\", \"name\": \"Alexander McDougald and others, plaintiffs in error, vs. Wm. A. T. Maddox and Wife, defendants in error\", \"name_abbreviation\": \"McDougald v. Maddox\", \"decision_date\": \"1855-01\", \"docket_number\": \"No. 5\", \"first_page\": \"52\", \"last_page\": \"55\", \"citations\": \"17 Ga. 52\", \"volume\": \"17\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T21:21:11.065204+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge Benninc having been of Counsel, did not preside in this case.\", \"parties\": \"Alexander McDougald and others, plaintiffs in error, vs. Wm. A. T. Maddox and Wife, defendants in error.\", \"head_matter\": \"No. 5.\\nAlexander McDougald and others, plaintiffs in error, vs. Wm. A. T. Maddox and Wife, defendants in error.\\nWilliam Moughon died testate, appointing John Mitchell his executor, who qualified and took possession of his estate ; and subsequently was appointed guardian of Sarah, the infant daughter of his testator. Mitchell died testate, appointing Alexander McDougald and others his executors. McDougald qualified and took the exclusive possession and control of the estate of Mitchell, amounting to $100,000. McDougald also was appointed guardian of the minor, and owing to the transfer of the guardianship from one county to another and other causes, several bonds, with different sets of sureties were given: Held, 1. That a bill filed against McDougald and the several sets of sureties, was not objectionable on the score of multifariousness. 2. That actions having been instituted at Law upon each of the bonds, the remedy was ample; and that a bill filed against the principal and all the different sureties, could not be entertained, there being no allegation of the insolvency of the principal. 3. That where several suits are pending at Law, if discovery is needed, and a resort is had to Chancery to obtain it, a separate bill must be filed in each ease; and the whole cannot be consolidated for that purpose.\\nIn Equity, in Muscogee Superior Court. Decision on demurrer, by Judge Craweord, January Term, 1854.\\nWilliam Moughon departed this life, leaving a considerable estate, to one half of which his daughter Sarah E. was entitled under his will. John Mitchell qualified as executor, and became guardian of the minor, and continued such guardian, without making any returns or settlement, until his death in 1841. He died testate, and Alexander McDougald qualified as his executor, and took sole possession and management of John Mitchell\\u2019s estate, amounting to $100,000 or some other large sum, and thereby became liable to account for the estate of the said minor. In 1841, said McDougald became guardian of the minor, giving bond with Daniel McDougald, Elizabeth Mitchell and William C. Osborn, as his sureties. In 1842, Os-horn complained to the Ordinary of the mismanagement of McDougald, as guardian, when George H. Bryson, Jamos C. Huey, Miles Moore, Richard W. Armer and Spencer Reynolds added their names as sureties to the original bond. In 1847, McDougald removed his guardianship from the County of Harris to the County of Muscogee, and gave a new bond, with Daniel McDougald and Duncan McDougald as sureties. William A. T. Maddox afterwards intermarried with Sarah E. Moughon, and to him McDougald delivered, as a part of her estate, forty-nine negro slaves. Railing to account for the hire and profits, suits were brought by Maddox and Wife upon both the bonds before set forth on the Common Law side of the Court.\\nPending these suits, Maddox and Wife filed their bill in Equity against the guardian and all of the sureties on both bonds, alleging the foregoing facts, and farther, that it is impossible for them to allege and prove, at Law, at what time the guardian committed the several breaches of his bond, in order to distribute the liability properly among the several sureties upon the respective. bonds. That the several sureties deny that the breaches occurred during the time of their liability, and cast upon the complainants the onus of proving the same, which it is impossible for them to do. The bill prayed for a full discovery from McDougald and the sureties, so as to locate the several breaches, and a decree accordingly.\\nTo this bill a demurrer was filed, 1st. Eor want of Equity. 2d. Because of the pendency of the Common Law actions. 3d. Eor multifariousness.\\nThe Court over-ruled the demurrer, and this decision is assigned as error.\\nThe Court ordered the defendants to answer by the next term of the Court, the defendants objecting, 1st. Because no usual rule had been taken. 2d. Because there were several pleas in bar which had not been heard or determined. Of the filing of these pleas, the complainants had no notie.e.\\nThis order for answers is also assigned as error.\\nJudge Benninc having been of Counsel, did not preside in this case.\\nJ ONES & J ones for plaintiff in error.\\nH. Holt, for defendant in error.\", \"word_count\": \"1325\", \"char_count\": \"7917\", \"text\": \"By the Court.\\nLumpkin, J.\\ndelivering the opinion.\\nThe view we have taken of this case, supercedes the necessity of considering many of the questions which have been discussed by Counsel. And we propose to dispose of it very briefly.\\nAnd first, our conclusion is that the bill is not obnoxious to the charge of multifariousness. True, John Mitchell acted as both executor of William Moughon, deceased, and as guardian of Sarah, the infant daughter of his testator. Still, he having died, abundantly solvent as the pleadings admit, and Alexander McDougald having qualified as executor upon the estate, and taken the exclusive possession and control thereof, amounting to $100,000 or some other large sum, he either retained in his hands assets sufficient to cover the indebtedness of Mitchell, in any and every capacity, or he is liable for neglect of duty in failing to do so. The entire solvency of Mitchell's estate which passed into the hands of McDougald, divests this transaction of all complexity, save that which the ingenuity of Counsel has thrown around it. Moreover, McDougald having officiated in the double capacity of executor of Mitchell, and guardian of the minor, continues the unity of accountability, if I may use such expression, throughout. It is suggested in the argument, that if we would substitute different persons in the various trusts exercised by Mitchell and McDougald, the incongruity of the present proceeding would be too glaring to be tolerated \\u2014 no doubt of it. And the identity of the parties is the best and only answer to the proposition. McDougald is responsible for the delinquency of Mitchell, whatever it might be; and he received assets abundantly sufficient to enable him to account. And when he became guardian, he settled with himself, in contemplation of law, as executor; and if he did not, he ought to have done so; and in either event, his securities, or some of them, are liable.\\nSuits at Law have been brought against McDougald and his several sets of securities. Do the complainants show by them any special reason for resorting to Equity ?\\nIn Alexander vs. Mercer et al. (7 Ga. Rep. 539,) this Court held that Chancery would entertain jurisdiction of a bill filed against the principal and both sets of sureties, praying a discovery of the amount of the devastavit and the time when it occurred, in order to charge each set of sureties according to their respective liabilities on their bonds. But the bill in that Case charged expressly \\\"that Mercer, the principal, was entirely insolvent.\\\" There is no such allegation in this bill. Indeed, it is not intimated but that McDougald, the principal, is abundantly able to respond to whatever recovery may be had, if any, against him. This being so, it matters not whether more or less is recovered in each particular case, and upon the-several bonds upon which these different sets of sureties are-sued. If McDougald is able to satisfy these various verdicts, should any be rendered, the interests of the sureties cannot be jeopardized; and no question will or can ever arise as to their respective rights and equities. Their principal stands between them and danger.\\nThe remedy at Law, then, is ample, and the parties must' abide by their election to go into that forum. The bill might be sustained for discovery alone, to aid in the prosecution of the actions at Law, but for the fact that there are several Common Law suits, and the discovery should have been sought separately for each case; and all the suits cannot, we apprehend, be embraced in one bill for this purpose.\\nOur judgment, therefore is, that the demurrer should have been allowed.\"}"

ga/1383510.json

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+"{\"id\": \"1383510\", \"name\": \"Sidney Horshaw, plaintiff in error, vs. The Lessee of William Cook, defendant in error\", \"name_abbreviation\": \"Horshaw v. Lessee of Cook\", \"decision_date\": \"1854-10\", \"docket_number\": \"No. 55\", \"first_page\": \"526\", \"last_page\": \"527\", \"citations\": \"16 Ga. 526\", \"volume\": \"16\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T21:57:00.117109+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sidney Horshaw, plaintiff in error, vs. The Lessee of William Cook, defendant in error.\", \"head_matter\": \"No. 55.\\nSidney Horshaw, plaintiff in error, vs. The Lessee of William Cook, defendant in error.\\n\\u00a31.] The mere absence of his Counsel, with the title papers of a defendant, is. not a sufficient ground for a continuance.\\nEjectment in Union Superior Court. Tried before Judge Irwin, April Term, 1854.\\nHorshaw, the defendant below, moved a continuance in this case, on the ground that A. J. Hansell, Esq. was employed for the defence, and had in his possession the title papers for the lot of land in dispute, under which defendant held, showing title out of the lessors of the plaintiff; and that he had promised to-attend the Court with the papers, without Providential hindrance; that he did not attend the Court regularly but frequently ; and the cause of his absence was not known. W- H. St\\u00e1nsell, of Counsel for defendant, farther.stated, in his place, that hie conversed with General Hansell a. short time previous to the-Court, and that he had spoken of certainly attending the Court.\\nThe Court over-ruled the motion, '-and this decision is assigncd as error.\\nMilner,', for plaintiff in\\u2019-error.\\nJ. W. H. Underwood, for defendant.\", \"word_count\": \"369\", \"char_count\": \"2164\", \"text\": \"By the Court.\\nStarnes J.\\ndelivering the opinion.\\nThis Court has decided, and upon sound principles, that the \\u2022. mere absence of Counsel is not a sufficient ground for the continuance of a cause. See Allen vs. the State, (11 Ga. R. 85) and the cases there cited. It has recognized the absence of the leading Counsel from Providential cause, as sufficient to authorize a continuance; but nothing short of this. It does -not appear that General Hansell was even the leading Counsel in this cause; and it is to be presumed he was not, or it would-have been shown; nor does the cause of his absence appear.\\nThe fact that he had defendant's -title papers with'him, cannot help the showing. The law required the defendant to have these papers at Court, that he might be in readiness for trial. It was at his own risk, therefo) ft, and \\\"manifested a.lwant of proper diligence, when he permitted, another, especially .one who was not his leading Counsel, to keep them in his possession, \\u2022and away from Court.\\nLet the judgment be affirmed.\"}"

ga/1429648.json

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+"{\"id\": \"1429648\", \"name\": \"LESLIE v. CITY OF MACON\", \"name_abbreviation\": \"Leslie v. City of Macon\", \"decision_date\": \"1926-06-15\", \"docket_number\": \"17298\", \"first_page\": \"484\", \"last_page\": \"486\", \"citations\": \"35 Ga. App. 484\", \"volume\": \"35\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T17:40:18.639300+00:00\", \"provenance\": \"CAP\", \"judges\": \"Broyles, C. J., and Bloodworth, J., concur.\", \"parties\": \"LESLIE v. CITY OF MACON.\", \"head_matter\": \"17298.\\nLESLIE v. CITY OF MACON.\\nDecided June 15, 1926.\\nB. G. Plunkett, for plaintiff. H. 8. Strozier, for defendant.\", \"word_count\": \"806\", \"char_count\": \"4675\", \"text\": \"Luke, J.\\nMrs. S. W. Leslie brought her action for personal in-\\njuries against the City of Macon. The petition as amended was dismissed on motion, and plaintiff excepted. That portion of the amended petition necessary to be considered is as follows: (3) Petitioner shows' that on or about April 2nd, 1924, she was a pedestrian traveling along what is known as Plum Street, in East Macon. (4) Petitioner shows that at, or near the intersection of said Plum Street and Jones Avenue there is a branch, over which there was constructed at one time a bridge. (5) Petitioner shows that several months ago said bridge, having become in such bad repair, was removed entirely by the City of Macon, its agents and employees, leaving only the old broken, uneven and slippery cement foundation, and that after the removal of the bridge pedestrians using said Plum Street had no way to cross said branch except by stepping upon and across the foundation of said bridge. (6) Petitioner shows that on said date she was walking along Plum Street, going in the direction of Jones Avenue,- and upon reaching said branch stepped upon the cement foundation of said old bridge for the purpose of crossing said branch, and that by reason of the broken, uneven and slippery condition of said cement foundation, the said foundation caved in and gave way under petitioner's feet, and your petitioner was thrown violently upon the ground, thereby sustaining a badly sprained, bruised and lacerated left arm, as well as having her entire body bruised and hurt. (9) Petitioner shows that at the time she sustained said injuries she was in the exercise of all ordinary care and diligence, and that by the exercise of such care and diligence said injuries could not have been avoided. (10) Your petitioner shows that the City of Macon has been negligent as follows: (a) In not maintaining a bridge over and across said branch, in permitting after the removal of said bridge, the cement foundation to become broken, uneven and slippery. (6) In not keeping said street in a reasonably safe condition for travel, (c) In failing to remove said broken, uneven and slippery cement foundation.\\nThe petition was further amended by adding\\\" the following paragraphs, numbered here as in the amendment: 2. Petitioner shows further that said branch or gully, at the time she sustained the injuries herein set fort, contained muddy and dirty water, and by reason thereof she could not, in the exercise of ordinary care and diligence, see the broken, uneven and slippery condition of said branch, and she could not, in the exercise of ordinary care and diligence, have known that said foundation would cave in and give way under her feet; that plaintiff stepped carefully and slowly upon the said cement foundation, placing her feet firmly upon said foundation before stepping. 3. The location at which your petitioner was injured, as herein set forth, was and. is within the corporate limits of said City of Macon. 5. Petitioner shows that the said City of Macon knew about the broken, uneven, dangerous, defective, and slippery condition of said street at said location, or that said defects had existed for a sufficient length of time to charge the City of Macon with notice under the law.\\nThe sole question here for solution is whether or not plaintiff failed to use ordinary care to avoid being injured by defendant's negligence. Plaintiff knew that the ditch was there, that the cement foundation, of the old bridge was in the ditch and that she could not see the condition of the foundation because of the muddy water in the ditch, and yet, without any emergency, she stepped on the foundation, fell, and was injured. In principle this case is controlled by section 4425 of the Civil Code (1910). Sheats v. City of Rome, 92 Ga. 535 (17 S. E. 922); Cook v. City of Atlanta, 94 Ga. 613 (19 S. E. 987); McCart v. Jasper County, 18 Ga. App. 769 (90 S. E. 725). See also Kent v. So. Bell Tel. &c. Co., 120 Ga. 980 (48 S. E. 399), where the rule enunciated in the foregoing authorities is elucidated and sustained, though held inapplicable to its facts. In the words of the code section cited, \\\"If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover.\\\" It appears as a matter of law from the allegations of the petition that plaintiff in this case failed.to use the requisite care, and the court did not err in dismissing the petition on motion.\\nJudgment affirmed.\\nBroyles, C. J., and Bloodworth, J., concur.\"}"

ga/1433296.json

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+"{\"id\": \"1433296\", \"name\": \"Moore v. DeKalb Supply Company\", \"name_abbreviation\": \"Moore v. DeKalb Supply Co.\", \"decision_date\": \"1926-10-29\", \"docket_number\": \"15870\", \"first_page\": \"64\", \"last_page\": \"64\", \"citations\": \"36 Ga. App. 64\", \"volume\": \"36\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T01:54:40.473688+00:00\", \"provenance\": \"CAP\", \"judges\": \"Jenkins, P. J., and Bell, J., eoneur.\", \"parties\": \"Moore v. DeKalb Supply Company.\", \"head_matter\": \"15870.\\nMoore v. DeKalb Supply Company.\\nDecided October 29, 1926.\\nAlston, Alston, Foster & Moise, W. G. Shearer, W. H. Sibley, for plaintiff.\\nJoseph E. Berman, Ralph G. Sims, for defendant.\", \"word_count\": \"104\", \"char_count\": \"606\", \"text\": \"Stephens, J.\\nThe judgment of reversal heretofore rendered by this court in this case (34 Ga. App. 375, 129 S. E. 899) having been reversed by the Supreme Court on certiorari (162 Ga. 758, 134 S. E. 620), the opinion rendered by this court in reversing the judgment of the court below is hereby withdrawn, and the ruling of the Supreme Court is hereby applied.\\nJudgment affirmed.\\nJenkins, P. J., and Bell, J., eoneur.\"}"

ga/1452929.json

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+"{\"id\": \"1452929\", \"name\": \"PRIDGEN v. MURPHY et al.\", \"name_abbreviation\": \"Pridgen v. Murphy\", \"decision_date\": \"1931-10-03\", \"docket_number\": \"21054\", \"first_page\": \"147\", \"last_page\": \"149\", \"citations\": \"44 Ga. App. 147\", \"volume\": \"44\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T00:53:42.441023+00:00\", \"provenance\": \"CAP\", \"judges\": \"J enlcins, P. J., and Stephens, J., concur.\", \"parties\": \"PRIDGEN v. MURPHY et al.\", \"head_matter\": \"21054.\\nPRIDGEN v. MURPHY et al.\\nDecided October 3, 1931.\\nHoyt H. Whelchel, James G. Davis, for plaintiff.\\nJames L. Dowling, P. Q. Bryan, for defendants.\", \"word_count\": \"574\", \"char_count\": \"3335\", \"text\": \"Bell, J.\\nWe first held in this case that the decedent who was employed as a woods-rider in a turpentine business was a \\\"farm laborer\\\" within the meaning of the section of the workmen's compensation act excluding certain classes of employees from its provisions. We later granted a rehearing, and the case is still before us. After continued and painstaking research and deliberation, we have now reached a contrary conclusion, and will hold that the decedent was not a farm laborer within the meaning of the statute. Many decisions and statutes have been examined, but this opinion will be limited to a discussion of the very few authorities that we deem to be directly in point.\\nIn Griffith v. Hulion, 90 Fla. 582 (4), 589 (107 So. 354), the Supreme Court of Florida, in construing section 3506 of the Revised General Statutes of Florida, which provided for a lien \\\"in favor of any person performing any labor in, or managing, or overseeing the cultivation or harvesting of crops,\\\" held that this statute was enacted for the benefit of agricultural laborers, their managers or overseers, and did not embrace persons engaged in the turpentine industry. In the course of the opinion, the court said: \\\"The chipping, scoring, or streaking of pine trees, by which the bark is torn away and the fiber of the tree exposed, so as to induce the flow therefrom of the sap or crude turpentine, rather than being a process of cultivation, is a process destructive in its nature, however beneficial in its results to mankind the lesion thus produced on the tree may be. There is no tilling of the ground or fertilizing of the soil around the tree, but a destruction of a portion of the tree in order to obtain the annual flow of the valuable sap which nature has already produced in its body. . . To hold that this section of the statute embraces the turpentine industry would be to do violence to the plain and commonly accepted meaning of the language used.\\\" The decision in that case was by a court which ought to speak with authority upon the question, since the turpentine business is perhaps more common in the State of Florida than in any other part of the country. We find no satisfactory reason for disagreeing with that decision, and will follow- it as an authoritative expression as to the essential character of the turpentine business. In principle the Griffith case answers in the negative the question of whether a person employed as a woods-rider in a turpentine business is a \\\"farm laborer\\\" within the meaning of this language as used in the compensation act.\\nThe Federal courts have held that the turpentine business is not \\\"agriculture.\\\" United States v. Waters-Pierce Oil Co., 196 Fed. 767; Union Naval Stores Co. v. United States, 240 U. S. 284 (36 Sup. Ct. 308, 60 L. ed. 644). The rule that the compensation act shall be liberally construed applies in determining whether a particular employment is within its provisions. New Amsterdam Casualty Co. v. Sumrell, supra; Johnson v. Wisconsin Lumber &c. Co., (Wis.) 334 N. W. 506, 72 A. L. R. 1279.\\nThe other rulings in the headnotes do not require elaboration.\\nJudgment reversed.\\nJ enlcins, P. J., and Stephens, J., concur.\"}"

ga/1455534.json

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+"{\"id\": \"1455534\", \"name\": \"TELFORD et al., executors, v. QUILLIAN et al.\", \"name_abbreviation\": \"Telford v. Quillian\", \"decision_date\": \"1932-05-10\", \"docket_number\": \"22119\", \"first_page\": \"257\", \"last_page\": \"261\", \"citations\": \"45 Ga. App. 257\", \"volume\": \"45\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T01:54:41.317049+00:00\", \"provenance\": \"CAP\", \"judges\": \"Broyles, O. J., and Jenkins, P. J., concur.\", \"parties\": \"TELFORD et al., executors, v. QUILLIAN et al.\", \"head_matter\": \"22119.\\nTELFORD et al., executors, v. QUILLIAN et al.\\nDecided May 10, 1932.\\nWheeler & Kenyon, for plaintiffs.\\nEd Quillian, J. B. J ones, for defendants.\", \"word_count\": \"1616\", \"char_count\": \"9222\", \"text\": \"Luke, J.\\nThe petition in this case is substantially as follows: \\\"The petition of J. H. Telford and R. T. Kenimer . . shows :\\n\\\"1. Petitioners are the duly appointed and qualified executors of the estate of R. T. Kenimer, deceased, and bring this suit as such.\\n\\\"2. The defendants . . are J. C. Quillian, G. M. Quillian and D. T. Quillian, doing business as a partnership under the name and style of J. C. Quillian and Brothers, and all of said defendants are residents of Hall County, Georgia. . .\\n\\\"3. Said defendants are indebted to petitioners as executors oE the estate of R. T. Kenimer in the principal sum of $3600, besides interest, attorney's fees and cost upon a promissory note, copy of which is hereto attached, marked Exhibit A. . .\\\"\\n4. (Avers the giving of written notice to claim attorney's fees.)\\n\\\"5. Defendants have failed and refused to pay the balance due on said note. . .\\n\\\"Wherefore petitioners pray that process issue and be served upon the defendants in terms of the law, requiring each of them to be and appear at the next term of this court to answer this complaint, and that judgment be rendered in favor of petitioners and against the defendants for the principal, interest, attorney's fees and costs. . .\\\"\\nOmitting some of its formal parts, and the stipulations in regard to attorney's fees and the waiver of homestead, the note declared upon is as follows:\\n\\\"One year after date [December 12, 1924] we promise to pay to R. T. Kenimer or bearer five thousand dollars for value received, with interest from date at 7 per cent, per annum, payable annually.\\n\\\"Witness our hands and seals.\\n\\\"J. C. Quillian & Bros. (L. S.)\\n\\\"G. M. Quillian. (L. S.)\\\"\\nOn the back of the note are certain credits which it is not necessary to set out.\\nSaid petition was filed on January 27, 1931, and on the same day process was issued requiring \\\"the defendants, J. C. Quillian & Bros., G. M. Quillian, D. T. Quillian, and J. C. Quillian . . to be and appear at the next City Court on the 3d Monday in February next . . to answer the plaintiffs' demand in an action of complaint. . .\\\"\\nOn January 28, 1931, G. M. Quillian \\u2022was served personally with the petition and process, and on the same day D. T. Quillian vras served by having a copy of the petition and process left at his most notorious place of abode. It also appears that J. C. Quillian was served personally. It further appears from the record that on De cember 5, 1931, there was an entry nunc pro tunc by the sheriff of Hall county reciting that bn January 28, 1931, he \\\"served the defendant, J. C. Quillian & Bros., with the within petition and process by delivering copy of same to George M. Quillian in person, and by serving D. T. Quillian with copy of same by leaving same at his most notorious place of abode in said county.\\\"\\nWe quote from the bill of exceptions as follows: \\\"At the regular February term, 1931, of said court the appearance docket was called, and, no answer or defense of any kind having been filed by any of the defendants in said case, the same was marked in default on the docket. Thereafter it was agreed that no judgment be taken at the May term, 1931, of said court. On September 13, 1931, George M. Quillian died, and on the first Monday in October, 1931, the last will and testament of George M. Quillian, deceased, was duly probated in the Court of Ordinary of Hall County and Ed Quillian was duly appointed and qualified as executor of the estate of George M. Quillian.\\\" \\\"On the 16th day of November, 1931, during the regular November term of said court, the plaintiffs filed a petition upon which a rule nisi was issued requiring Ed Quillian, as executor of the estate of George M. Quillian, to show cause why he should not be made a party to said case in lieu of the deceased defendant, George M. Quillian. . . On the 18th day of November, 1931, Ed Quillian as executor filed his answer to said rule, claiming that the application for said rule nisi was prematurely brought, and that he could not be made a party to said case until after the expiration of twelve months after his appointment as such executor.\\\" On November 28, 1931, the court adjudged that \\\"the executor of the estate of George M. Quillian has twelve months from his qualification as such executor before he can be made a party to this suit, and the rule nisi . . is hereby dismissed.\\\" To this judgment plaintiffs duly excepted. The bill of exceptions continues: \\\"After the foregoing order was entered, plaintiffs moved for a judgment against the defendant partnership and the surviving defendants. Whereupon the judge took the matter under advisement until December 5th, 1931.\\\" (Here the record mentions the fact that said entry of service nunc pro tunc on said partnership was made on December 5, 1931.) Plaintiffs then introduced the original note declared upon, and it was admitted by all parties that George M. Quillian died on September 13, 1931; that an order had been taken suggesting his death of record; that the last will of George M. Quillian had been duly probated on the first Monday in October, 1931; and that on said date Ed Quillian had qualified and been duly appointed as executor of said will. \\\"Whereupon plaintiffs renewed their motion for a judgment against the defendants, J. C. Quillian and Brothers, and D. T. Quillian and J. C. Quillian, as surviving partners. After argument of counsel for both sides, the court took the matter under advisement again, and on December 12, 1931, entered an order denying plaintiffs' motion for judgment against the partnership or against either of the surviving members of the partnership. To this judgment . . the plaintiffs excepted, and now except and assign error thereon, . . and say that the court should have then and there entered up judgment against the partnership and against D. T. Quillian and J. C. Quillian as surviving members of the partnership for the full amount sued for in said case.\\\"\\nIn Tanner v. Hinson, 155 Ga. 838, 841 (118 S. E. 680), this language appears: \\\"There are two methods by which the executor or administrator of a dead defendant can be made a party in his stead. One is by scire facias, which' can only be issued after the expiration of twelve months from the probate of the will, or the grant of letters of administration. Civil Code (1910), \\u00a7 5599. The other is by a rule nisi. Sections 5601, 5602. In Ham v. Robinson, 146 Ga. 442 (91 S. E. 483), this court said: 'Inasmuch as the statute (Civil Code, \\u00a7 4015) exempts an administrator or executor (Civil Code, \\u00a7 3892) from suit for twelve months after his qualification, and the procedure to make parties by scire facias permits the plaintiff to proceed after the expiration of twelve months from the probate of the will or the granting of letters of administration, it would seem that if the course authorized by sections 5601 and 5602 be pursued, the motion should be made after the twelve months has expired.'\\\"\\nWe are of the opinion that the foregoing cases correctly interpret the code sections having reference to the making of partes in cases like the one at bar, and that the trial judge properly ruled that the executor of the will of George M. Quillian could not be made a party to the suit until the expiration of twelve months from his qualification as such executor, and properly dismissed the rule nisi.\\nWe quote here from the judgment of December 12, 1931; \\\"It is adjudged by the court that the plaintiffs are not entitled to a judgment against the partnership nor against the surviving members of the partnership in the absence of an amendment making the partnership a party defendant, and in no event can a judgment be had until after the expiration of twelve months from the date of the qualification of the personal representative of the estate of George M. Quillian.\\\"\\nIn connection with this phase of the case we will state that it nowhere appears from the record that there was any order of the court allowing the aforementioned nunc pro tunc entry of service as to the partnership. The Civil Code (1910), \\u00a7 5623, lays down this rule: \\\"In all cases which have been or may be commenced in any of the courts of this State against two or more defendants, one or more of whom have died or may die pending said case, it shall and may be lawful for the plaintiff or complainants to suggest said death of record, and to proceed, in the trial of said case or cases, against the surviving defendant, to the extent of their respective liabilities.\\\" In Crapp v. Dodd, 92 Ga. 405 (3) (17 S. E. 666), it is said: \\\"When a suit is pending against a partnership composed of three members, and one of them dies, upon his death being suggested of record, the case may proceed without further order against the other two partners as survivors.\\\"\\nUnder the foregoing authorities, we hold that the trial judge erred in refusing to allow the plaintiffs in the instant case to prosecute their case to judgment against the surviving defendants, J. C. Quillian and D. T. Quillian, without further delay.\\n' Judgment reversed.\\nBroyles, O. J., and Jenkins, P. J., concur.\"}"

ga/1455948.json

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+"{\"id\": \"1455948\", \"name\": \"COUNCIL BROTHERS et al. v. INTERNATIONAL AGRICULTURAL CORPORATION\", \"name_abbreviation\": \"Council Bros. v. International Agricultural Corp.\", \"decision_date\": \"1932-04-29\", \"docket_number\": \"21719\", \"first_page\": \"158\", \"last_page\": \"159\", \"citations\": \"45 Ga. App. 158\", \"volume\": \"45\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T01:54:41.317049+00:00\", \"provenance\": \"CAP\", \"judges\": \"Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.\", \"parties\": \"COUNCIL BROTHERS et al. v. INTERNATIONAL AGRICULTURAL CORPORATION.\", \"head_matter\": \"21719.\\nCOUNCIL BROTHERS et al. v. INTERNATIONAL AGRICULTURAL CORPORATION.\\nDecided April 29, 1932.\\nJames A. Fort, for plaintiffs in error.\\nH. B. Williams, W. T. Lane, contra.\", \"word_count\": \"232\", \"char_count\": \"1320\", \"text\": \"Luke, J.\\nException is taken by Council Brothers, a copartnership, and H. S. Council individually, to a judgment of the city court of Americus, overruling their motion for a new trial, in an action on a promissory note, brought against them by International Agricultural Corporation.\\nSince the general grounds of the motion for a new trial are not referred to in the brief of counsel for the plaintiff in error, no consideration has been given to them.\\nThe special grounds of the amendment to the motion that are numbered 1, 2, 3, 4, 6, and 7 do not meet the requirement that such grounds must be complete and understandable within themselves, without reference to any other part of the record. See Dees v. State, 41 Ga. App. 321 (5) (152 S. E. 913).\\nThe refusal of the trial court to allow an amendment to an answer, assigned as error in special ground 5, is not a proper ground of a motion for a new trial. Hendricks v. Georgia Fertilizer Co., 40 Ga. App. 427 (3) (149 S. E. 711).\\nNo error appears in the judgment of the trial court herein complained of.\\nJudgment affirmed.\\nBroyles, G. J., concurs. Bloodworth, J., absent on account of illness.\"}"

ga/1476448.json

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+"{\"id\": \"1476448\", \"name\": \"PEOPLES BANK v. FOSTER\", \"name_abbreviation\": \"Peoples Bank v. Foster\", \"decision_date\": \"1936-03-24\", \"docket_number\": \"24924\", \"first_page\": \"86\", \"last_page\": \"88\", \"citations\": \"53 Ga. App. 86\", \"volume\": \"53\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T00:18:14.568195+00:00\", \"provenance\": \"CAP\", \"judges\": \"Jenkins, P. J., and Sutton, J., concur.\", \"parties\": \"PEOPLES BANK v. FOSTER.\", \"head_matter\": \"24924.\\nPEOPLES BANK v. FOSTER.\\nDecided March 24, 1936.\\nBoykin & Boykin, for plaintiff.\\nWillis Smith, Smith & Millican, for defendant.\", \"word_count\": \"949\", \"char_count\": \"5228\", \"text\": \"Stephens, J.\\nThis case has been here twice, and once in the Supreme Court. Foster v. Peoples Bank, 42 Ga. App. 102 (155 S. E. 62); Foster v. Peoples Bank, 47 Ga. App. 447 (170 S. E. 408); Peoples Bank v. Foster, 180 Ga. 1 (177 S. E. 721). The Peoples Bank sued Poster on his indorsement of a check for $2000. It was alleged in the petition that Foster deposited in the Peoples Bank the check which was issued by Citizens Bank; that the Peoples Bank accepted the check for collection for the account of Foster, and gave him a time certificate for $1000, and a pass-book in which he was credited with $1000; that on the next day the Peoples Bank presented the check to the Citizens Bank for payment, and the latter gave the former a check on a Baltimore bank in a sum sufficient to pay its $2000 check and some small items in addition; that when the Citizens Bank check reached the Baltimore bank, payment was refused because the Citizens Bank had failed and was then in the hands of the superintendent of banks of Georgia. Other allegations in the petition are not now material.\\nG. C. Cook, the cashier of the plaintiff: bank, testified that he recalled the transaction when the check of the Citizens Bank indorsed by J. T. Foster was deposited at the teller's window and that Grady Middlebrooks handled the transaction. He testified further as follows: \\\"This book was made out and given to Mr. Foster. This book shows a deposit of $1000. This is a general deposit. We issued him a time certificate. . . The deposit was made after 10 o'clock on December 29. . . It was cleared on December 30th. When we cleared it, we accepted exchange on Baltimore. That check was turned down. We never did receive a dollar on it. This check of the Citizens Bank dated December 28, 1925, for $2000, was deposited in the Peoples Bank, $1000 on time certificate, and $1000 on general deposit. The time certificate when it matured at the expiration of six months was paid to Mr. Foster. I paid him interest on it also. Just a few days later he drew out the money he had on general deposit. The Citizens Bank was open and operating on the day they gave us the exchange on the Baltimore bank. Mr. Foster did not know anything about us accepting the exchange. On the pass-book Mr. Foster did not sign his name. His name was placed there by Mr. Grady Middlebrooks. Mr. Foster has had this pass-book since December 29, 1925. I was not able to get Mr. Foster's check and deliver it back to him and charge it to his account. The banking department refused to let me have it, and that is the reason I did not charge it back. We tried to collect it out of the Citizens Bank after it was in the hands of the banking department. We could not. I knew at the time we paid Mr. Foster the interest that the bank in Baltimore had turned down this draft.\\\"\\nThe plaintiff introduced a telegram from the Baltimore bank to the Peoples Bank, dated January 6, 1926, which stated that the Citizens Bank check had been protested, etc.; the $2000 check of Citizens Bank to the order of J. T. Foster, indorsed by him and marked \\\"Paid 12-30-25;\\\" the pass-book on which appeared the following: \\\"Notice: Always bring your book with your deposits. See that the entries agree with your tickets. Items are credited or cashed subject to final payment in cash. This bank acts only as depositor's agent and will not be liable in case of failure or' negligence of collecting agents, or for loss in mail. Eight is reserved to send items direct to institutions where payable and to accept their exchange draft in lieu of money. Items on this bank not good at close of business may be charged back;\\\" and the check of Citizens Bank on the Baltimore bank, with memorandum of protest thereon. At the close of the plaintiff's evidence, the defendant moved-for a nonsuit, which was granted by the court. This is assigned as error.\\nComparing the evidence above recited with the evidence as recited in the decisions in Foster v. Peoples Bank, 47 Ga. App. 447 (170 S. E. 408), and Peoples Bank v. Foster, 180 Ga. 1 (177 S. E. 721), there are some points of difference. The plaintiff's only witness testified that the pass-book given to Foster was not signed by him, but that his name was put on it by the bank teller; and that Foster did not know \\\"anything about us accepting the exchange.\\\" There was no testimony as to a custom of the banks to accept exchange in lieu of cash in collecting the check of another bank. There was no testimony that Foster was advised that the check of the Citizens Bank was accepted by the Peoples Bank \\\"for collection,\\\" in any manner other than by the notice contained in the pass-book. There was no testimony that his attention was called to this notice. There was no proof that the Citizens Bank would or could not have paid cash, if the Peoples Bank had demanded it. This case is controlled by the rulings in Foster v. Peoples Bank, 47 Ga. App. 447 (2, 4, 6) (170 S. E. 408) and Peoples Bank v. Foster, 180 Ga. 1 (3) (177 S. E. 721). The nonsuit was properly granted.\\nJudgment affirmed.\\nJenkins, P. J., and Sutton, J., concur.\"}"

ga/1492427.json

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+"{\"id\": \"1492427\", \"name\": \"ELLIOTT v. PORCH\", \"name_abbreviation\": \"Elliott v. Porch\", \"decision_date\": \"1938-11-07\", \"docket_number\": \"27056\", \"first_page\": \"181\", \"last_page\": \"182\", \"citations\": \"59 Ga. App. 181\", \"volume\": \"59\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T02:01:17.032044+00:00\", \"provenance\": \"CAP\", \"judges\": \"Stephens, P. J., and Sutton, J., concur.\", \"parties\": \"ELLIOTT v. PORCH.\", \"head_matter\": \"27056.\\nELLIOTT v. PORCH.\\nDecided November 7, 1938.\\nRehearing denied December 10, 1938.\\nA. M. Zellner, W. B. Mitchell, for plaintiff in error.\\nWilliams & Freeman, contra.\", \"word_count\": \"570\", \"char_count\": \"3077\", \"text\": \"Eelton, J.\\nWhile in a case where there has been no return of service whatever, but it is made to appear that the defendant had in fact been served, the return of service may be made, on motion, by an entry nunc pro tunc so as to authorize the court to proceed with the case (Jones v. Bibb Brick Co., 120 Ga. 321, 325, 48 S. E. 25), still, in the absence of any return of service and of a proceeding of the nature above mentioned to supply the deficiency, the court has no jurisdiction to render a valid judgment (Callaway v. Douglasville College, 99 Ga. 623, 25 S. E. 850; News Printing Co. v. Brunswick Pub. Co., 113 Ga. 160, 162, 38 S. E. 333; Jones v. Bibb Brick Co., supra; Wood v. Callaway, 119 Ga. 801 (47 S. E. 178), and where, under the facts of the record in the present case, it was admitted that there was no return of service whatever before the judgment was rendered, and an execution1 was levied on the property of the defendant, who filed an affidavit of illegality on the grounds that he was not served with process or other notice of the suit out of which the execution issued, and that he did not waive service or appear in or defend the suit; and where, after the judgment was rendered, an entry of service nunc pro tunc was made by the officer, and judgment was rendered against the affidavit of illegality, the court erred in overruling the defendant's motion for new trial. .\\nJudgment reversed.\\nStephens, P. J., and Sutton, J., concur.\"}"

ga/1523062.json

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+"{\"id\": \"1523062\", \"name\": \"CARDELL v. THE STATE\", \"name_abbreviation\": \"Cardell v. State\", \"decision_date\": \"1943-10-09\", \"docket_number\": \"30141\", \"first_page\": \"45\", \"last_page\": \"45\", \"citations\": \"70 Ga. App. 45\", \"volume\": \"70\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T01:50:44.040655+00:00\", \"provenance\": \"CAP\", \"judges\": \"MacIntyre and Gardner, JJ., concur.\", \"parties\": \"CARDELL v. THE STATE.\", \"head_matter\": \"30141.\\nCARDELL v. THE STATE.\\nDecided October 9, 1943.\\nKirkland & Kirkland, for plaintiff in error.\\nW. E. Lanier, solicitor-general, contra.\", \"word_count\": \"284\", \"char_count\": \"1662\", \"text\": \"Broyles, C. J.\\nThe defendant was convicted of stabbing. The evidence, while in sharp conflict, authorized the verdict.\\nSpecial ground 1 of the motion for new trial is as follows: \\\"Because the court erred in charging the jury as follows: 'Moral and reasonable certainty is all that can be attained in legal investigation. In civil cases the preponderance of the evidence is sufficient to produce this mental conviction, but in criminal cases a greater strength of mental conviction is necessary to justify a verdict of guilty.5 To which charge of the court movant excepted and now excepts and assigns the same as error.55 The only other special ground reads: \\\"Because the court erred in giving in charge t\\u00f3 the jury as follows: 'The accused has, in the exercise of his right, made in your hearing a statement. It is not under oath and shall have such weight and credit as the jury thinks proper to give it. You may believe the statement of the defendant in preference to the sworn testimony in the case.5 To which charge of the court movant excepted, and now excepts and assigns the same as error.55 In neither of these grounds is it pointed out wherein the excerpt from the charge complained of was error. See Trammell v. Shirley, 38 Ga. App. 710, 714, Rule 9 (145 S. E. 486). Furthermore, neither excerpt complained of, when considered in the light of the entire charge and the facts of the case, discloses reversible error. The denial of a new trial was not error.\\nJudgment affirmed.\\nMacIntyre and Gardner, JJ., concur.\"}"

ga/1523106.json

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+"{\"id\": \"1523106\", \"name\": \"DAVIS v. PITTMAN et al.\", \"name_abbreviation\": \"Davis v. Pittman\", \"decision_date\": \"1944-01-12\", \"docket_number\": \"30215\", \"first_page\": \"504\", \"last_page\": \"507\", \"citations\": \"70 Ga. App. 504\", \"volume\": \"70\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T01:50:44.040655+00:00\", \"provenance\": \"CAP\", \"judges\": \"MacIntyre, J., concurs.\", \"parties\": \"DAVIS v. PITTMAN et al.\", \"head_matter\": \"30215.\\nDAVIS v. PITTMAN et al.\\nDecided January 12, 1944.\\nTye, Thomson, Tye & Edmondson, for plaintiff in error.\\nJ. O. Savage, E. L. Sterne, J. Q. Murphy, Bond Almand, Moise & Post, E. Bates Block, contra.\", \"word_count\": \"933\", \"char_count\": \"5319\", \"text\": \"Gardner, J.\\nThe.court did not err in overruling the demurrers. This disposes of the exceptions pendente lite.\\nThere was no evidence that Davis constructed the sewer in question. In fact the evidence is undisputed that he did not. He purchased the property .after the construction of the \\\"private\\\" sewer line. It appears from the evidence that there were certain transactions between Davis and the authorities of the city with reference to connecting other portions of the \\\"private\\\" sewer line to the city mains, and transactions wherein Davis permitted the tapping of the private line (part of which was constructed over the tract on.which the plaintiff's house was built), in order to connect with the city mains. But there was no evidence of any such connection concerning that portion of the sewer on the lot in question. There was 'no evidence which would authorize the .inference that Davis at the time of the damage complained of, and for a number of years prior thereto, maintained or attempted to maintain the sewer line running under the plaintiff's house, or that he owned or controlled any property along, adjacent to, or in the vicinity of the alleged defective sewer. But there is a direct allegation that about the year 1927 the city acquired the sewer line and obligated itself to maintain it, and it became a part of the city's sewerage system. There is evidence to this effect. On this feature of the case the evidence wholly failed to sustain a recovery against the defendant Davis either on the theory that he improperly constructed the sewer or negligently' maintained it. This leaves but one further contention to sustain the verdict against Davis, and that is as to the allegation in the amendment to the effect that in 1914, knowing that the sewer was constructed across the lot in question, Davis sold the lot to the plaintiff's predecessor in title, J. W. Woolley (plaintiff acquiring the same in 1934 by inheritance), without revealing the location of the sewer to the then purchaser of the property. The petition does not allege that there was any express warranty concerning the sewer. The petition is lacking in any allegation as to actual or constructive fraud except as above - stated. There was no demurrer filed to the amendment, which was set up after the overruling of the general and special demurrers. Therefore we are not here concerned with whether a different cause of action was thereby alleged against Davis, but we are concerned and must decide whether there was any evidence to sustain this theory of the case. The evidence reveals that on January 8, 1914, Davis deeded the tract in question to J. W. Woolley; that on February 20, 1918, J. W. Woolley deeded it to Hoyt C. Woolley (the father of the plaintiff, who died the following April, leaving the plaintiff as his sole heir at law); that on October 11, 1934, Henry J. Austin, as guardian of the plaintiff, deeded the tract to her. The evidence reveals that the house was built by J. W. Woolley. The evidence does not disclose the nature of the conveyances, that is, whether they contained covenants of warranty of any nature, or the consideration. Neither does the evidence show that at the time Davis conveyed the lot to Woolley, Davis knew of the location of the sewer on this particular lot. . If it be conceded, for the sake of argument, that Davis did know of the location of the sewer, under the evidence submitted to sustain the verdict on the theory that he concealed it, the evidence is insufficient in law. We have been unable to find any authority in this State, and none has been cited to us, where the mere concealment of such a fact from a predecessor in title of real estate (as shown by the facts of this case), is sufficient to sustain such a recovery. Woodward v. Miller, 119 Ga. 618 (46 S. E. 847, 64 L. R. A. 932, 100 Am. St. R. 188), involves personal property; 41 A. L. R. 78, \\u00a7 27, does not apply because there is no proof that Davis constructed the sewer line.\\nIt is argued that Hopkins v. City of Atlanta, 172 Ga. 254 (157 S. E. 473), and Davis v. Hopkins, 50 Ga. App. 654 (179 S. E. 213), both involving the same facts and parties, are authority to sustain the verdict in the instant case against Davis. By reference to the facts of the Hopkins cases, it will be seen that they are different from the case at bar. In Davis v. Hopkins, it was alleged and proved that the sewer pipe in that lot was exposed to view at the time Davis purchased the property. Thereafter he began hauling and dumping thereon, rubbish and barrels and other materials unsuitable to fill a lot. As to the sewer and the lot here in question, there is no such allegation or evidence. We therefore conclude and hold that the principle ruled under the facts in the Hopkins cases can not be extended to sustain the recovery against Davis in the instant case. The court erred in overruling the motion for a new trial.\\nJudgment reversed.\\nMacIntyre, J., concurs.\"}"

ga/1542871.json

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+"{\"id\": \"1542871\", \"name\": \"FIDELITY & CASUALTY COMPANY OF NEW YORK et al. v. BARDEN\", \"name_abbreviation\": \"Fidelity & Casualty Co. v. Barden\", \"decision_date\": \"1949-05-13\", \"docket_number\": \"32443\", \"first_page\": \"260\", \"last_page\": \"262\", \"citations\": \"79 Ga. App. 260\", \"volume\": \"79\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T20:25:12.590760+00:00\", \"provenance\": \"CAP\", \"judges\": \"Button, C. J., and Parker, J., concur.\", \"parties\": \"FIDELITY & CASUALTY COMPANY OF NEW YORK et al. v. BARDEN.\", \"head_matter\": \"32443.\\nFIDELITY & CASUALTY COMPANY OF NEW YORK et al. v. BARDEN.\\nDecided May 13, 1949.\\nJohn M. Slaton, for plaintiff in error.\\nFraser & Irwin, contra.\", \"word_count\": \"549\", \"char_count\": \"3219\", \"text\": \"Felton, J.\\nWe think that the board was authorized to find that the death of the employee resulted from an accident which arose in the course of and out of the employment. The employer's place of business was one to which the public was invited, whether to do business or not. The boy possessing the pistol, after having been upon the premises and having departed, was invited back by a coemployee of the deceased in connection with a transaction purely personal to himself. This fact, however, did not render the transaction one purely personal to the deceased. Such an invitation was certainly one to be anticipated. If the deceased had been killed by the carelessness of the fellow employee, we think there would be no doubt that the injury would be compensable. We .have held that injuries to a nonparticipating employee caused by horse-play are compensable (American Mutual Liability Ins. Co. v. Benford, 77 Ga. App. 93, 47 S. E. 2d, 673), and it would seem that similar conduct by the public which is indiscriminately invited upon the premises would also render injuries to non-participating employees compensable. Furthermore, it would seem that injuries from horse-play or negligence on the part of invitees would be of more frequent occurrence than horse-play or negligence by employees, due to their preponderance in number and difference in character and habits, etc. Some courts have gone so far as to hold that the fact that the employee is stationed at a particular place at the time of subjection'to danger makes the injury sustained there compensable, and that is the principle in the case of Thornton v. Hartford Accident & Indemnity Co., 198 Ga. 786 (32 S. E. 2d, 816). Cases involving street dangers are based on the same principle. To be compensable, injuries do not have to arise from something peculiar to the employment. Otherwise hardly any injury due to the negligence of an employee or fellow employee or employer would be compensable. After the event, it is apparent to the rational mind that there is a causal connection between the conditions under which the employment was. performed and the resulting injury. Whaley v. Patent Button Co., 184 Tenn. 700 (202 S. W. 2d, 649); Anderson v. Hotel Cataract, 70 S. D. 376 (17 N. W. 2d, 913). See Entrocut v. Paramount Bakery & Restaurant Co., 222 App. Div. 844 (226 N. Y. Supp. 808), where it was decided, without opinion, that where a policeman waiting to be served in a restaurant was cleaning his revolver which went off accidentally and shot a waiter as he was entering from the kitchen,, the accident was compensable. See also Carmichael v. J. C. Mahan Motor Co., 167 Tenn. 613 (11 S. W. 2d, 672), where it was held that an employee suffered a compensable injury when he, while at his post of duty, was struck by a missile from an air rifle in the hands of children, guests of the employer, who were impliedly invited to the premises and permitted to remain there.\\nThe court did not err in affirming the award granting compensation.\\nJudgment affirmed.\\nButton, C. J., and Parker, J., concur.\"}"

ga/1542915.json

@@ -0,0 +1 @@
+"{\"id\": \"1542915\", \"name\": \"Bostick v. Yaughn\", \"name_abbreviation\": \"Bostick v. Yaughn\", \"decision_date\": \"1949-04-26\", \"docket_number\": \"32407\", \"first_page\": \"180\", \"last_page\": \"180\", \"citations\": \"79 Ga. App. 180\", \"volume\": \"79\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T20:25:12.590760+00:00\", \"provenance\": \"CAP\", \"judges\": \"MacIntyre, P. J., and Townsend, J., concur.\", \"parties\": \"Bostick v. Yaughn.\", \"head_matter\": \"32407.\\nBostick v. Yaughn.\\nDecided April 26, 1949.\\nA. M. Zellner, for plaintiff.\\nW. D. Aultman, for defendant.\", \"word_count\": \"440\", \"char_count\": \"2484\", \"text\": \"Gardner, J.\\n(a) This is a processioning case, between Mrs. Alma Bostick, the applicant, and Mrs. A. Y. Yaughn, the protestant. The processioners made a return in favor of the applicant. The protestant mapped out and 'defined a line as contended for by her. After the evidence was in for both parties, the attorneys stipulated and requested the court to submit to the jury a single issue: that they should find whether the line as found by the proeessioners was a correct line or that contended for by the protestant. The jury found the true dividing line to be as contended by the protestant. The applicant filed a motion for a new trial on the general grounds only. The court overruled this motion. The applicant excepted.\\n(b) Under the evidence and the law, the line as found by the processioners was wholly unauthorized. The line as contended by the protestant was sufficiently definite under the evidence and the law to establish the true dividing line.\\n(c) Besides other witnesses, the surveyor and one of the proeessioners introduced by the applicant testified in effect that they did not attempt to mark anew the established dividing line, but attempted in the main to run a straight line even though it traversed the established dividing line which had been recognized for many years. This case in the main is almost on all fours with the case of Hall v. Browning, 71 Ga. App. 694 (32 S. E. 2d, 126), except in that case there was not sufficient evidence to establish and mark anew the true dividing line, whereas in this case the line as claimed by the protestant is sufficiently definite in every way to establish a true dividing line between the parties. In view of all of the evidence, a verdict in favor of the protestant was demanded. Proeessioners have no authority under the law to do other than mark anew established lines as they actually exist. They have no right to run a line where they think it should be in order to make it straight. See also Aderhold v. Lambert, 67 Ga. App. 166 (19 S. E. 2d, 538), Smith v. Clemons, 71 Ga. App. 589 (31 S. E. 2d, 621), and the many other cases cited with annotations under the Code (Ann.), \\u00a7 85-1605. See also the Code (Ann.), \\u00a7 85-1601, 85-1602, 85-1603.\\nThe court did not err in overruling the motion for a new trial for any of the reasons assigned.\\nJudgment affirmed.\\nMacIntyre, P. J., and Townsend, J., concur.\"}"

ga/1559125.json

@@ -0,0 +1 @@
+"{\"id\": \"1559125\", \"name\": \"RAILWAY EXPRESS AGENCY INC. v. L. E. PARKER FISH COMPANY\", \"name_abbreviation\": \"Railway Express Agency Inc. v. L. E. Parker Fish Co.\", \"decision_date\": \"1953-03-13\", \"docket_number\": \"34538\", \"first_page\": \"779\", \"last_page\": \"781\", \"citations\": \"87 Ga. App. 779\", \"volume\": \"87\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T20:31:49.123806+00:00\", \"provenance\": \"CAP\", \"judges\": \"Toivnsend and Carlisle, JJ., concur.\", \"parties\": \"RAILWAY EXPRESS AGENCY INC. v. L. E. PARKER FISH COMPANY.\", \"head_matter\": \"34538.\\nRAILWAY EXPRESS AGENCY INC. v. L. E. PARKER FISH COMPANY.\\nDecided March 13, 1953.\\nJ. W. Claxton, for plaintiff in error.\\nE. L. Rowland, contra.\", \"word_count\": \"373\", \"char_count\": \"2104\", \"text\": \"Gardner, P. J.\\nThis was an interstate, and not an intrastate, shipment of fish, carried by the defendant express company, and no presumption of negligence existed as to the defendant carrier relative to the condition of the fish when delivered by it. The rights and liabilities of the parties depend upon the laws of Congress, and the bill of lading and the common-law rules as applied in the Federal courts. Cincinnati &c. R. Co. v. Rankin, 241 U. S. 319 (36 Sup. Ct. 555). The carrier is liable if the goods are delivered to it in good condition and are delivered by it to the consignee in bad or damaged condition; and where the goods are received in bad condition, the plaintiff must show that the goods were received by and delivered to the carrier in good condition and delivered to the plaintiff in bad condition or that the goods were in better condition when received by the carrier for shipment than when delivered to the consignee. See Brown &c. Co. v. Southern Ry. Co., 79 Ga. App. 449 (53 S. E. 2d, 702), and cit.; Rome Electric Inc. v. Railway Express Agency, 81 Ga. App. 368 (59 S. E. 2d, 19), and cit. There was no evidence that these fish were delivered to the carrier in good condition or that they were in better condition when received by it than when delivered by it to the plaintiff. Consequently, the plaintiff failed to introduce evidence authorizing a recovery, and the verdict and judgment in its favor was without evidence to support it and contrary to law.\\nThe testimony of the agent for the express company that he inspected the fish and they did not appear to have been properly iced en route is not sufficient to show that they were delivered to the carrier in good condition or that they were in better condition when received by the carrier than when delivered to the plaintiff.\\nIt follows that the court erred in denying the defendant's . motion for a new trial.\\nJudgment reversed.\\nToivnsend and Carlisle, JJ., concur.\"}"

ga/1559289.json

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+"{\"id\": \"1559289\", \"name\": \"Green v. City of Atlanta\", \"name_abbreviation\": \"Green v. City of Atlanta\", \"decision_date\": \"1952-11-12\", \"docket_number\": \"34228\", \"first_page\": \"178\", \"last_page\": \"179\", \"citations\": \"87 Ga. App. 178\", \"volume\": \"87\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T20:31:49.123806+00:00\", \"provenance\": \"CAP\", \"judges\": \"Townsend and Carlisle, JJ., concur.\", \"parties\": \"Green v. City of Atlanta.\", \"head_matter\": \"34228.\\nGreen v. City of Atlanta.\", \"word_count\": \"614\", \"char_count\": \"3493\", \"text\": \"Gardner, P.J.\\nW. J. Green was charged with, and tried in the Recorder's Court of the City of Atlanta for, a violation of an ordinance of said city, providing that \\\"The driver of a vehicle involved in an accident resulting in injury to or death of any person or property damage to an apparent extent of $25.00 or more, shall immediately by the quickest means of communication, either verbal or written give notice of such accident to the police department if such accident occurs within this City.\\\" City of Atlanta, Code \\u00a7 88-309. The material evidence was to the effect that the defendant was driving his wife's automobile along Gordon Road, S. W., in said city at about 1:15 a. m. on August 13, 1950, when he ran into some shrubbery along the side of this road and into a utility pole, causing his car to wreck. There was no one in the car with the defendant. The night watchman at the West View Cemetery, which is on the southerly side of Gordon Road at the point where this accident took place, was the first person to reach the scene of the accident, and he testified in effect that when he reached the scene the defendant was in a stupor. Shortly thereafter an automobile going in the same direction out Gordon Road, on which the defendant had been proceeding, came up and the occupants thereof removed the defendant from his automobile into their car and then removed the defendant's automobile to a nearby filling station and left it there. These persons then carried the defendant to the home of his mother-in-law and left him. The damage to the car driven by the defendant amounted to about $300. A few minutes following the accident, the two policemen on this beat discovered the defendant's car and removed it from the filling station to the police station in said city. On the next day the wife of the defendant, being unable to locate her automobile at the filling station where it had been left, reported to the police department that it had been stolen. She proved her ownership of the car to the police department sufficiently for them to return the car to her. The police sent word to the defendant for him to report to the police station. The defendant did so within a week, at which time the instant case was made against him. It does not appear beyond a reasonable doubt that the defendant failed to report this accident within a reasonable time after the same happened. There was no evidence that he had been drinking intoxicants, the night watchman testifying that he did not smell any liquor on the defendant when he discovered him in this car in a stupor. By the defendant's statement, it affirmatively appears that he was blinded by the lights of an approaching car and this caused the accident, that he was injured to the extent of being rendered unconscious, and that he was carried to the home of his mother-in-law. It does not appear that the evidence was sufficient to sustain the defendant's conviction for violating the above provisions of the ordinance of said city. The judge of the Superior Court of Fulton County, therefore, erred in dismissing the petition of the defendant, W. J. Green, for the writ of certiorari, complaining of his conviction in the Recorder's Court of the City of Atlanta.\\nDecided November 12, 1952.\\nW. Owen Slate, Chas. W. Bergman, for plaintiff in error.\\nJ. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin, Henry L. Bowden, contra.\\nJudgment reversed.\\nTownsend and Carlisle, JJ., concur.\"}"

ga/1561415.json

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+"{\"id\": \"1561415\", \"name\": \"BROOKS v. WOFFORD\", \"name_abbreviation\": \"Brooks v. Wofford\", \"decision_date\": \"1953-09-18\", \"docket_number\": \"34713\", \"first_page\": \"731\", \"last_page\": \"734\", \"citations\": \"88 Ga. App. 731\", \"volume\": \"88\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T20:02:52.248926+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sutton, C.J., and Worrill, J., concur.\", \"parties\": \"BROOKS v. WOFFORD.\", \"head_matter\": \"34713.\\nBROOKS v. WOFFORD.\\nDecided September 18, 1953.\\nQuillian, Quillian & Thomas, Wheeler, Robinson & Thurmond, for plaintiff in error.\\nWm. P. Whelchel, contra.\", \"word_count\": \"829\", \"char_count\": \"4673\", \"text\": \"Felton, J.\\n1. The court erred in charging the jury that they should find for the defendant if the injured person could have avoided the consequences of the defendant's negligence. The duty bn one to avoid the consequences of a defendant's negligence is not absolute, but is only a duty to exercise ordinary care to discover and avoid the defendant's negligence. Hamrick v. Haralson County, 41 Ga. App. 203 (3) (152 S. E. 581); Warren County v. Battle, 48 Ga. App. 240 (4) (172 S. E. 673); W. & A. R. Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306); Wynne v. Southern Bell Tel. &c. Co., 159 Ga. 623 (126 S. E. 388); Atlanta Ry. &c. Co. v. Bennett, 115 Ga. 879 (42 S. E. 244); Code (Ann.) \\u00a7 105-603. The fact that the judge also gave a correct charge on the subject did not cure the error when he did not call the jury's attention to the erroneous charge and correct or retract it. See Code (Ann.) \\u00a7 70-207 under catchword \\\"Conflicts.\\\"\\n2. The court erred in charging the jury as follows: \\\"And if a person is negligent and his negligence results in injuries to another person, yet, if that other person is also negligent at the same time and his negligence concurs with the negligence of the person whose negligence causes the injury, and concurring with it, contributes to the injury so that it becomes a proximate and immediate or direct cause, so that he would not have been injured if he had not himself been negligent, although the other party may also have been negligent, under these circumstances, the law would not allow him to recover damages for his injuries from the other party.\\\" This charge confused several principles of law, to wit: (1) that no recovery can be had if a defendant was negligent but where the plaintiff's own negligence was the proximate cause of the injury; (2) that, where the injured person and the defendant' were both guilty of concurring negligence proximately causing the injury, the plaintiff cannot recover if the negligence of the injured person was equal to or greater than that of the defendant; (3) that, if the injured person and the defendant were both guilty of contributing acts of negligence proximately causing the injury, and the injured person's negligence was less than the defendant's, the plaintiff could still recover but the recovery must be diminished by the proportion attributable to the injured person. Americus, Preston &c. R. Co. v. Luckie, 87 Ga. 6 (13 S. E. 105); Macon, Dublin &c. R. Co. v. Moore, 99 Ga. 229 (25 S. E. 460); Columbus R. Co. v. Peddy, 120 Ga. 589 (4) (48 S. E. 149). The court charged the correct law immediately following the excerpt excepted to, but did not call the jury's attention to the incorrect charge and correct it.\\n3. The exception in special ground 3 need not be passed on, as the case is to be tried again and the omission complained of will not likely recur. The exception is that the court, in charging on the preponderance of the evidence, omitted the words \\\"their intelligence\\\" in referring to the matters to be considered respecting witnesses' testimony.\\n4. In charging the law with reference to the impeachment of a witness by proof of contradictory statements, whether the court erred in charging that such a witness might be sustained by general good character when there was no evidence of the witness's good character need not be decided, as the case is reversed for other reasons. It should be stated, however, that such a charge should not be given in the absence of evidence of the witness's good character. In reference to the other exception to the charge on impeachment of witnesses, as the case is to be tried again suffice it to say that, when the trial judge undertakes to charge the law on impeachment, he should charge all of the rules of law on that subject applicable to the facts of the case. Harper v. State, 17 Ga. App. 561 (2) (87 S. E. 808); Moore v. State, 55 Ga. App. 157 (189 S. E. 551); Ware v. State, 81 Ga. App. 762 (59 S. E. 2d 753).\\n5. The court erred in charging the jury that certain principles of law applied both to the defendant's driver and the plaintiff's son, when as a matter of fact not all of the principles stated applied to the plaintiff's son, in that there was no evidence that the plaintiff's son was guilty of negligence under some of the principles stated to the jury.\\n6. Special grounds 6, 7, 8, 9, and 10 of the amended motion are without merit.\\nThe court erred in denying the amended motion for new trial.\\nJudgment reversed.\\nSutton, C.J., and Worrill, J., concur.\"}"

ga/1561571.json

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+"{\"id\": \"1561571\", \"name\": \"Morton Realty Company v. Hunter\", \"name_abbreviation\": \"Morton Realty Co. v. Hunter\", \"decision_date\": \"1953-04-11\", \"docket_number\": \"34504\", \"first_page\": \"29\", \"last_page\": \"30\", \"citations\": \"88 Ga. App. 29\", \"volume\": \"88\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T20:02:52.248926+00:00\", \"provenance\": \"CAP\", \"judges\": \"Felton and Woxrill, JJ., concur.\", \"parties\": \"Morton Realty Company v. Hunter.\", \"head_matter\": \"34504.\\nMorton Realty Company v. Hunter.\", \"word_count\": \"162\", \"char_count\": \"937\", \"text\": \"Sutton, C. J.\\nMorton Realty Company sued Dr. Jack Hunter, in the Civil Court of DeKalb County, for rent alleged to be due on an office. The defendant filed an answer and cross-action, to which the plaintiff filed general and special demurrers. The demurrers were overruled, and the plaintiff excepted. Held:\\nDecided April 11, 1953.\\nCharles W. Bergman, for plaintiff in error.\\nJ. Robin Harris, contra.\\nThe judgment overruling the plaintiff's demurrers to the defendant's answer and cross-action is not such a final judgment as can be reviewed by a direct bill of exceptions. Therefore, the writ of error is dismissed. Dove v. Maxwell, 184 Ga. 460 (191 S. E. 916); Daniel v. Chastaine, 177 Ga. 730 (2) (171 S. E. 373); White v. Chisolm, 160 Ga. 177 (127 S. E. 140); Johnson v. First National Bank of Shellman, 50 Ga. App. 90 (177 S. E. 73).\\nWrit of error dismissed.\\nFelton and Woxrill, JJ., concur.\"}"

ga/1583641.json

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+"{\"id\": \"1583641\", \"name\": \"HOLCOMBE v. PARKER\", \"name_abbreviation\": \"Holcombe v. Parker\", \"decision_date\": \"1958-07-16\", \"docket_number\": \"37212\", \"first_page\": \"17\", \"last_page\": \"20\", \"citations\": \"98 Ga. App. 17\", \"volume\": \"98\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T00:48:09.202740+00:00\", \"provenance\": \"CAP\", \"judges\": \"Felton, C. J., and Nichols, J., concur.\", \"parties\": \"HOLCOMBE v. PARKER.\", \"head_matter\": \"37212.\\nHOLCOMBE v. PARKER.\\nDecided July 16, 1958.\\nJames C. Holcombe, for plaintiff in error.\\nVernon W. Duncan, contra.\", \"word_count\": \"650\", \"char_count\": \"3569\", \"text\": \"Quillian, Judge.\\nThe sole question for determination in this case is whether the trial court's judgment sustaining the demurrers and dismissing the petition was correct.\\nIf the petition in its final form met the requirements of the act of 1847 (Ga. L. 1847, p. 203) and of Code \\u00a7 81-101 it was not subject to demurrer. Henry Darling, Inc. v. Harvey-Given Co., 40 Ga. App. 771, 775 (151 S. E. 518).\\nThe act of 1847 provides that to set forth a cause of action upon an account the petition must allege: the defendant, the resident of a named county, is indebted to the plaintiff so many dollars on an account \\\"as will fully appear by reference to a bill of particulars\\\" annexed to the petition and that the defendant has refused to pay the account. It is, of course, the intention of the statute that the bill of particulars be attached to the petition. The requirements of Code \\u00a7 81-101 applicable to suits on accounts and other actions are that the petition plainly and fully and distinctly set forth the ground of the complaint. This demand is met when the petition, or the bill of particular's, or both of them \\\"fairly apprize the defendant of the character of the demand, so as to enable him to- prepare his defense.\\\" Henry Darling, Inc. v. Harvey-Given Co., 40 Ga. App. 771, supra.\\nIn Southern Ry. Co. v. Grant, 136 Ga. 303, 304 (71 S. E. 422) it is held not necessary that the petition set forth the ground upon which the plaintiff claims the defendant is liable to him on the account upon which the suit is brought.\\nThe petition in the instant case refers to the annexed bill of particulars for information as to the nature of the grounds upon which the plaintiff claims the right to recover on the account sued upon. The bill of particulars is explicit and full. So we reach the conclusion that the plaintiff's case was well pleaded by the petition in its final form, and met the statutory requirements of both the act of 1847 and Code \\u00a7 81-101.\\nIn making this ruling we have considered the defendant's insistence that the due date of the account sued upon was not shown by the bill of particulars.\\nIn Busby v. Marshall, 125 Ga. 645 (54 S. E. 646), it is held that the averment that the account became due at a particular time is necessary to plead a suit on account under the short form prescribed by the act of 1847. This holding is in conflict with numerous holdings of the Supreme Court exemplified by Dugas v. Hammond, 130 Ga. 87 (60 S. E. 268) in which it is held that no allegations except those required by the act are necessary to set forth a cause of action on an open account. The act provides that it be alleged that the defendant is indebted to the plaintiff on the account sued upon. This is a declaration that the account is due and no further averment in that respect need be made. The Busby case is clearly contrary to the pronouncement of Bland v. Strange, 52 Ga. 93, 94 which it cites as supporting authority. In the Bland case on page 95 is the holding: \\\"The common counts in assumpsit are promises upon\\ndebts due before that time, but the precise day is not stated usually in assumpsit. In our statutory form all that is required is to state that so much is due upon an account, with a reference to a bill of particulars attached: Code \\u00a7 3393.\\\"\\nIn our opinion the demurrers to the petition raised no valid objection, and the trial court erred in sustaining them.\\nJudgment reversed.\\nFelton, C. J., and Nichols, J., concur.\"}"

ga/1600312.json

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+"{\"id\": \"1600312\", \"name\": \"SMITH v. HARTRAMPF, Transferee\", \"name_abbreviation\": \"Smith v. Hartrampf\", \"decision_date\": \"1962-09-06\", \"docket_number\": \"39599\", \"first_page\": \"603\", \"last_page\": \"606\", \"citations\": \"106 Ga. App. 603\", \"volume\": \"106\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T19:52:47.750627+00:00\", \"provenance\": \"CAP\", \"judges\": \"Carlisle, P. J., and Russell, J., concur.\", \"parties\": \"SMITH v. HARTRAMPF, Transferee.\", \"head_matter\": \"39599.\\nSMITH v. HARTRAMPF, Transferee.\\nDecided September 6, 1962\\nRehearing denied September 24, 1962.\\nWilliam B. Jones, for plaintiff in error.\\nCurtis M. Cook, Eugene 8. Taylor, contra.\", \"word_count\": \"1003\", \"char_count\": \"5709\", \"text\": \"Eberhardt, Judge.\\nThe original summons of garnishment in this case was directed to Smith Hardware Company and the return showed service on \\\"Smith Hardware Co. by serving the same on Mr. Smith its agent.\\\" After a recovery by plaintiff Hartrampf, claimant Frank Smith was granted a new trial in this court because the plaintiff had failed to carry the burden of showing that the property levied on was owned by the defendant garnishee Smith Hardware Co. Smith v. Hartrampf, 105 Ga. App. 40 (123 SE2d 417). Subsequently, the return of the original summons of garnishment was amended to show service on \\\"Smith Hardware Co. by serving the same on Mr. Smith owner personally.\\\" The trial proceeded before the court without a jury and resulted in a recovery by plaintiff. The claimant Smith complains of the overruling of his motion for new trial on both general and special grounds.\\nThe controlling issue in the case is whether or not the process was amendable. According to Code \\u00a7 81-1313, a void process may not be amended. But \\\"every court has power . to amend and control its processes and orders, so as to make them conformable to law and justice; and to amend its own records, so as to make them conform to the truth.\\\" Code \\u00a7 24-104(6). The question resolves itself to whether or not a return of process may be amended to show service on the same person in some other capacity.\\nGenerally, our courts have been quite liberal on the subject of defects in process and the return of process for \\\"It is the fact of service, and not the return made by the officer, which gives the court jurisdiction of a party.\\\" Southern Exp. Co. v. Na tional Bank of Tifton, 4 Ga. App. 399, 401 (61 SE 857); Clements v. Sims T-V, Inc., 105 Ga. App. 769, 773 (125 SE2d 705); Klosenski v. Flaherty (Fla.) 116 S2d 767, 82 ALR2d 664. It has been said that the power to amend process is as broad as that allowed for other pleadings. McGhee v. Mayor &c. of Gainesville, 78 Ga. 790, 792 (3 SE 670); Everett v. McCary, 93. Ga. App. 474 (92 SE2d 112).\\nThe purpose of process it to give the defendant notice of the suit and to give the court jurisdiction. Leverett, Hall & Christopher, Ga. Procedure & Practice, \\u00a7 3-6 (1957). Here Frank Smith admitted that he was served with the process. The defective return of a valid service of process may be amended to speak the truth. Southern Bell Tel. &c. Co. v. Jackson, 102 Ga. App. 699 (1) (117 SE2d 550). In fact, our courts have gone so far as to say that \\\"Any amendment of the return which makes it speak the truth can be made; and when so amended, it relates back to the date of service, and is to be considered the initial return.\\\" (Emphasis added). Southern Exp. Co. v. National Bank of Tifton, 4 Ga. App. 399, supra, at (3). See Jones v. Bibb Brick Co., 120 Ga. 321 (48 SE 25).\\nAnd amendments changing descriptions have been allowed. In Mayer & Lowenstein v. Chattahoochee Nat. Bank, 46 Ga. 606, the return of personal service on one Epping of a summons of garnishment was held amendable to show that Epping was served in his capacity as president of the garnishee bank. Bell v. Ayers, 82 Ga. App. 92 (60 SE2d 523) presented a situation where the original return showed service on \\\"Coca-Cola Bottling Company, a foreign corporation.\\\" The sheriff was allowed to amend his return, after an amendment to the petition, to show service on \\\"the Coca-Cola Bottling Company, the defendant by serving [Bell] one of the partners, personally.\\\"\\nClaimant urges that Gibbs v. Rhodes Furniture Co., 58 Ga. App. 352 (198 SE 315) is controlling. There the court stated that the rule preventing the amendment of a return of process to show service on some other person prevented an amendment of the return to show service on an individual of a summons of garnishment directed to a corporation and served on its agent. The case is distinguishable in that the garnishee was specifically stated to be a corporation. Here the summons was directed to \\\"Smith Hardware Co.\\\" which only purports a corporation. Hunnicutt v. Reed, 149 Ga. 803 (102 SE 421). Evidence was admissible to show that it was a trade name. Dillard v. Jackson's Atlanta Ready Mix Concrete Co., 105 Ga. App. 607 (125 SE2d 656). Further, if the case were in no respect distinguishable, we would be bound by the older Supreme Court decision in Mayer & Lowenstein v. Chattahoochee Nat. Bank, 46 Ga. 606, supra. And see McCall v. Kliros, 76 Ga. App. 89 (45 SE2d 72) which allowed the amendment in circumstances similar to those with which we here deal. Cf. East v. Louis Briggs Const. Co., 95 Ga. App. 472 (98 SE2d 61).\\nSince the amendment of the return was properly allowed, the question of whether Frank Smith (claimant) did business as \\\"Smith Hardware Co.\\\" (garnishee) was for the trier of fact and here plaintiff carried the burden of proof. Smith v. Hartrampf, 105 Ga. App. 40, 43, supra, and citations; Dillard v. Jackson's Atlanta Ready Mix Concrete Co., 105 Ga. App. 607, supra. The admission of photographs, asserted by claimant to be error, was proper since they were relevant to this issue. There was sufficient evidence to support the verdict on the general grounds.\\nJudgment affirmed.\\nCarlisle, P. J., and Russell, J., concur.\\nThe failure of the plaintiff to amend is one of the reasons a new trial was granted, the court saying: \\\"However, there was no amendment, the garnishment was not served on an individual, and the judgment and execution were not in the proven trade name of the claimant.\\\" Smith v. Hartrampf, 105 Ga. App. 40, supra, at 43.\"}"

ga/1605322.json

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+"{\"id\": \"1605322\", \"name\": \"ADDISON v. SOUTHERN RAILWAY COMPANY\", \"name_abbreviation\": \"Addison v. Southern Railway Co.\", \"decision_date\": \"1963-09-16\", \"docket_number\": \"40300\", \"first_page\": \"314\", \"last_page\": \"316\", \"citations\": \"108 Ga. App. 314\", \"volume\": \"108\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T01:55:16.409129+00:00\", \"provenance\": \"CAP\", \"judges\": \"Frankum and Jordan, JJ., concur.\", \"parties\": \"ADDISON v. SOUTHERN RAILWAY COMPANY.\", \"head_matter\": \"40300.\\nADDISON v. SOUTHERN RAILWAY COMPANY.\\nDecided September 16, 1963.\\nOliver, Oliver & Gunter, Jack N. Gunter, for plaintiff in error.\\nWheeler, Robinson & Thompson, B. Carl Buice, contra.\", \"word_count\": \"463\", \"char_count\": \"2856\", \"text\": \"Nichols, Presiding Judge.\\nThe plaintiff's amended petition alleges an implied contract under which the plaintiff would be entitled to recover on a quantum meruit basis. The motion for summary judgment and the sworn testimony in connection therewith show a contract (actual or implied), between the plaintiff and the United States Post Office Department under which the plaintiff was a \\\"mail messenger\\\" employed to transport mail between the Post Office where he was employed and the defendant railroad, that at the time he first began such employment the necessary labor to load and unload mail from trains operated by the defendant was furnished by the defendant, but that later the employees of the defendant performing such labor were discharged and the plaintiff was then required to perform the task of loading and unloading mail from such trains. Other evidence showed that the plaintiff expressed to the defendant's agent his belief that he should be paid for such additional services rendered in connection with the handling of the mail but that the plaintiff, when the services were begun, was never hired to do the job.\\nIn Brightwell v. Oglethorpe Tel. Co., 47 Ga. App. 521, 526 (171 SE 162), it was held: \\\"'The rule as generally stated is that where one renders beneficial services for another, the law ordinarily presumes a request and promise to pay what such services are reasonably worth, . . . unless they were rendered under circumstances which repel this presumption.. But the law will not imply a promise to pay for services contrary to the intention of the parties.' 20 Cyc. 2802. 'There can be no recovery for services rendered voluntarily and with no expectation at the time of the rendition that they will be compensated, and this is true whether the services were or were not beneficial. Under such circumstances no obligation, whether legal or moral, is incurred. A subsequent change of intention by the parties performing the services does not alter the rule.' 15 Am. & Eng. Enc. Law (2d Ed.), 1079.\\\" From the evidence adduced with regard to defendant's motion for summary judgment it appeared that at the time the services were rendered neither the plaintiff nor the defendant anticipated that the defendant would compensate the plaintiff for the services rendered. Under such circumstances the trial court did not err in granting the defendant's motion for summary judgment. Generally, as to summary judgments, see Studstill v. Aetna Cas. &c. Co., 101 Ga. App. 766 (115 SE2d 374); McGeeney v. Robertson, 102 Ga. App. 318 (116 SE2d 252); Scales v. Peevy, 103 Ga. App. 42 (118 SE2d 193).\\nJudgment affirmed.\\nFrankum and Jordan, JJ., concur.\"}"

ga/1620065.json

@@ -0,0 +1 @@
+"{\"id\": \"1620065\", \"name\": \"KINNEY v. MILLER\", \"name_abbreviation\": \"Kinney v. Miller\", \"decision_date\": \"1966-09-06\", \"docket_number\": \"42065\", \"first_page\": \"244\", \"last_page\": \"247\", \"citations\": \"114 Ga. App. 244\", \"volume\": \"114\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T20:58:26.489418+00:00\", \"provenance\": \"CAP\", \"judges\": \"Frankum and Pannell, JJ., concur.\", \"parties\": \"KINNEY v. MILLER.\", \"head_matter\": \"42065.\\nKINNEY v. MILLER.\\nArgued June 6, 1966\\nDecided September 6, 1966.\\nPinckney B. Fleming, Donald E. Austin, for appellant.\\nConnerat, Dunn, Hunter, Houlihan, Maclean & Exley, Stanley W. Feiler, Spencer Connerat, Jr., for appellee.\", \"word_count\": \"1011\", \"char_count\": \"5871\", \"text\": \"Felton, Chief Judge.\\nRegardless of whether the court's ruling as to what the plaintiff had to prove to recover punitive damages in a default case was correct or incorrect, the plaintiff was given a choice between continuing his case according to the expressed theory of the court\\u2014with a resulting uncertainty as to what he must prove, unpreparedness to prove what was required to be proved and apprehension of an adverse judgment\\u2014and dismissing his case without prejudice. Finding himself in the dilemma of having to produce proof of allegations which he had assumed to have been established by the default judgment and of being denied a continuance by which to prepare such proof, the plaintiff accepted the court's suggestion of dismissal without prejudice as the best way out of the dilemma, and neither the plaintiff nor the court apparently then realized that the compensatory damages were still in issue. The following excerpts from the court's order of re-instatement indicate the court's awareness of its part in inducing the plaintiff's dismissal: \\\"There is no doubt in the court's mind that it high-pressured the plaintiff in dismissing his case without submitting to the jury the question of compensatory damages, and that the court ought to have the courage to correct its own error. .' . The court feels that it was right in overruling the motion for continuance and that under these circumstances in the heat of the trial plaintiff's counsel dismissed his petition for fear of an adverse judgment and completely overlooked the question of compensatory damages as the court had done and did not call it to the court's attention. The court feels that this dismissal was under coercion and plaintiff should be allowed to re-instate his ease. . . Plaintiff had a witness which he states in his place would have proven compensatory damages and that witness was not allowed to get on the stand.\\\"\\n\\\"When a case has been withdrawn or dismissed, without a finding by the jury on the facts on which the defense rests, and the court below allows it to be re-instated, this court will not interfere with that discretion.\\\" Vanzant, Jones & Co. v. Arnold, Hamilton & Johnson, 31 Ga. 210 (1); Harrison v. Tate, 100 Ga. 317 (27 SE 179); Bird v. Burgsteiner, 113 Ga. 1012 (39 SE 425); City of Atlanta v. Miller, 125 Ga. 495 (54 SE 538); Southern R. Co. v. James, 114 Ga. 198 (39 SE 849); Glenn v. Glenn, 152 Ga. 793 (111 SE 378); Miraglia v. Bryson, 152 Ga. 828 (3, a) (111 SE 655); Brooks v. Brooks, 175 Ga. 313 (1) (165 SE 106). An early Supreme Court case established that a plaintiff being allowed by the court to dismiss his case without prejudice may move to re-instate his cause and that \\\"[t]he cause should be re-instated in court if the necessity for its dismissal was super-induced by the error of the court.\\\" Warner v. Graves, 25 Ga. 369 (1, 2). The basis of the Warner case was that \\\"[t]he plaintiff was, by the decision of the presiding judge in the court below, driven to the necessity of either submitting to a decree against him by the jury, or of dismissing his bill.\\\" P. 371.\\nAlthough there is a line of cases which, on their face, would seem to deny the court's authority to re-instate the present ac tion, these can be ' distinguished on. their facts. The case of Simpson v. Brock, 114 Ga. 294 (40 SE 266), held that \\\"[w]hen a plaintiff, by his counsel, voluntarily dismisses his petition, whether for a good reason or bad reason, the court has no authority, over objection by the defendant, to re-instate the action.\\\" The Supreme Court expressly based that decision on the fact that the act of dismissing the case was that of the plaintiff's own counsel, and indicated that \\\"[h]ad the court improperly dismissed the action, the question would be entirely different. . .\\\" (Emphasis supplied.) In the case at bar, although the case was dismissed by plaintiff's counsel, the necessity for its dismissal, as in the Warner v. Graves case, was superinduced by the error of the court. The choice between trying the case under the court's expressed erroneous theory and dismissing without prejudice could not fairly be said to have resulted in a \\\"voluntary\\\" dismissal by the plaintiff. Various other cases denied re-instatement where dismissal was based on unilateral mistake or ignorance of the law, Colclough v. Bank of Penfield, 160 Ga. 303 (127 SE 752), inadvertence and misunderstanding, Yatesville Banking Co. v. Fourth Nat. Bank of Atlanta, 17 Ga. App. 420 (87 SE 606), and failure of the plaintiff's witnesses to show up, Buford v. Farmers &c. Bank, 110 Ga. App. 393 (138 SE2d 609). In Petty v. Piedmont Fertilizer Co., 146 Ga. 149, 150 (90 SE 966), the court pointed out that the lower court had no discretion in that case (in which regard see Brooks v. Brooks, supra, and cit.) nor was the dismissal based on mutual mistake of law upon the part of counsel for both sides as to the legal effect of such action, or of being misled by the opposite party, or the like. In Headnote 1, the court noted that no fraud, mutual mistake, \\\"or other good cause\\\" was there shown for re-instatement. See also Seals v. Stocks, 100 Ga. 10 (30 SE 278). The above language in this and other cases is inclusive enough to encompass the situation in the case at bar. The rejection of the Warner and Brooks cases, supra, by the court in Bowman v. Bowman, 79 Ga. App. 240, 242 (1) (53 SE2d 244), was based upon their inapplicability to the facts of that case rather than the invalidity of their holdings.\\nThe court, therefore, did not err in its judgment re-instating the plaintiff's case.\\nJudgment affirmed.\\nFrankum and Pannell, JJ., concur.\"}"

ga/167793.json

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+"{\"id\": \"167793\", \"name\": \"MARTIN v. ROWLAND\", \"name_abbreviation\": \"Martin v. Rowland\", \"decision_date\": \"1933-07-13\", \"docket_number\": \"No. 9424\", \"first_page\": \"363\", \"last_page\": \"364\", \"citations\": \"177 Ga. 363\", \"volume\": \"177\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T17:35:36.435768+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"MARTIN v. ROWLAND.\", \"head_matter\": \"MARTIN v. ROWLAND.\\nNo. 9424.\\nJuly 13, 1933.\\nO. S. Glaxton and J. W. Glaxlon, for plaintiff.\\nHatcher & Hatcher and Rowland & Rowland, for defendant.\", \"word_count\": \"812\", \"char_count\": \"4609\", \"text\": \"Beck, P. J.\\nR. R. Martin brought his petition against J. H. Rowland and alleged in substance that at the September term, 1930, of the superior court of Johnson County the plaintiff was elected a member of the board of education of that county; that his term of office, under the statute, was for four years; that by virtue of the election he had been serving on the board of education and discharging the duties thereof from the date of his election, and was continuing to serve as a member of the board at the date of his petition; that he is now serving as a member of the board, and his term of office will not expire until the September term, 1934, of the superior court of Johnson County. At the adjourned term, 1932, of that court the grand jury of the county elected J. H. Rowland a member of the board of education for a term of four years, that is, from October 14, 1932, to October 14, 1936, in the place of Martin. No charges have been made or preferred against Martin as a member of the board. During the term of court and before the adjournment thereof Martin filed his petition and prayed that a judgment and order of court be passed \\\"revoking, annulling, and cancelling the election and appointment of the said Joe H. Rowland as a member of the county board of education by the grand jury, and that petitioner be declared by proper order of the court to be the duly qualified member of the county board of education.\\\" Subsequently an amendment to the petition was filed, setting out the facts as alleged in the original petition, and making the further allegation that Rowland was undertaking to interfere with the board by participating in the regular meetings and to forcibly oust Martin from the office as a member of the board. Petitioner prayed, in addition to the prayers above stated, that \\\"the said J.- H. Rowland be restrained and enjoined from participating, or in any other manner interfering with the county board of education.\\\" The court sustained a demurrer to the petition, and the plaintiff excepted.\\nIt is recited in the bill of exceptions that the court sustained the defendant's demurrer on the sole ground that plaintiff should have brought quo warranto proceedings to determine the title to the office in question. This court is of the opinion that under the facts alleged the issue made brings the case within the ruling in Coleman v. Glenn, 103 Ga. 458, where the court restated a principle laid down in High on Injunctions. The writer of the opinion in that ease quoted approvingly what was said in the text-book referred to, as follows: \\\"No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence, is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office; such questions being of a purely legal nature, and cognizable only by courts of law. A court of equity will not permit itself to be made the forum for determining disputed questions of title to public offices, or for the trial of contested elections, but will in all cases leave the claimant of the office to pursue the statutory remedy, if there be such, or the common-law remedy by proceeding in the nature of quo warranto. Thus, equity will not interfere by injunction to restrain persons from exercising the functions of public offices, on the ground of the illegality of the law under which their appointments were made, but will leave that question to be determined by a legal forum.\\\" And in Sweat v. Barnhill, 170 Ga. 545 (153 S. E. 364), this principle is restated and approved, the holding of the court being as follows: \\\"Injunction is not the remedy to test the questions here involved. It appears to be a contest between two sets of county commissioners, as to which set is entitled to hold said offices and to manage the affairs of the County of Clinch. It is well settled, where the title to an office is involved, that quo warranto, or a petition in the nature of a quo warranto, is the proper remedy, rather than an equitable petition for injunction. Civil Code (1910), \\u00a7 5451; Coleman v. Glenn, 103 Ga. 458 (2) (30 S. E. 297, 68 Am. St. R. 108); Stanford v. Lynch, 147 Ga. 518 (94 S. E. 1001); McCarthy v. McKinney, 137 Ga. 292, 297 (73 S. E. 394).\\\" These authorities settle the controlling question in this case.\\nJudgment affirmed.\\nAll the Justices concur.\"}"

ga/167927.json

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+"{\"id\": \"167927\", \"name\": \"New York Life Insurance Company v. Thompson\", \"name_abbreviation\": \"New York Life Insurance v. Thompson\", \"decision_date\": \"1933-12-13\", \"docket_number\": \"No. 9360\", \"first_page\": \"898\", \"last_page\": \"898\", \"citations\": \"177 Ga. 898\", \"volume\": \"177\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T17:35:36.435768+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur, except Mill, J., absent because of illness.\", \"parties\": \"New York Life Insurance Company v. Thompson.\", \"head_matter\": \"New York Life Insurance Company v. Thompson.\\nNo. 9360.\\nDecember 13, 1933.\\nLawton & Cunningham, and Bryan, Middlelrooks & Carter, for plaintiff in error.\\nB. D. Dubberly and J. T. Grice, contra. T. J. Lewis and John T. Dennis, for persons at interest, not parties.\", \"word_count\": \"92\", \"char_count\": \"557\", \"text\": \"Russell, C. J.\\nUpon mature consideration of the record after grant of the writ of certiorari, it is considered, ordered, and adjudged that the judgment of the Court of Appeals be and it is hereby affirmed.\\nJudgment affirmed.\\nAll the Justices concur, except Mill, J., absent because of illness.\"}"

ga/1699093.json

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+"{\"id\": \"1699093\", \"name\": \"HARDIN v. THE STATE\", \"name_abbreviation\": \"Hardin v. State\", \"decision_date\": \"1998-01-26\", \"docket_number\": \"S97A1735\", \"first_page\": \"1\", \"last_page\": \"5\", \"citations\": \"269 Ga. 1\", \"volume\": \"269\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T19:27:33.927621+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"HARDIN v. THE STATE.\", \"head_matter\": \"S97A1735.\\nHARDIN v. THE STATE.\\n(494 SE2d 647)\", \"word_count\": \"1753\", \"char_count\": \"10821\", \"text\": \"Sears, Justice.\\nAppellant Janice Hardin appeals her conviction and sentence for the murder of her husband, claiming that the trial court erred in admitting over objection certain statements in which she confessed to having participated in the killing. At issue are three statements Hardin made to law enforcement officials in which she admitted having been involved in the murder. Regarding the first statement, we find that it was non-custodial, and thus was not subject to exclusion due to the officer's failure to advise Hardin of Miranda warnings before she made the statement. Regarding the second statement, we find that any error associated with its admission at trial was harmless, because it was cumulative of other evidence that was admitted properly at trial. Regarding the third statement, we find that it was knowingly and voluntarily made after Hardin was advised of and waived her Miranda rights. Therefore, we affirm.\\nThe evidence of record, construed most favorably to the jury's verdict, shows that Hardin and her lover, Donaldson, planned to kill Hardin's husband. One evening, Hardin unlocked the back door to the couple's home, and then left the home with her two children. While they were away, Donaldson entered the home through the unlocked back door, and shot Hardin's husband, killing him. He then joined Hardin and her children. After returning home, Hardin telephoned police to say that robbers had entered her house and had shot her husband.\\nThe following day, Hardin voluntarily gave a statement at police headquarters, in which she described returning home the previous evening and discovering her husband's body. After police received a tip regarding the Hardin-Donaldson affair, Hardin admitted that she had not been wholly truthful with the police, and stated that she would contact the investigating officer later in order to tell him more. At 3:00 a.m. the following morning, Hardin telephoned the officer, and they arranged to meet at a nearby restaurant. During that meeting, Hardin admitted her involvement in the murder. The investigator asked Hardin if she would accompany him to his car, which was parked outside the restaurant, so that she could make a tape-recorded statement, and she agreed to do so. After repeating her confession in the investigator's car and allowing the officer to tape record the confession, Hardin left the restaurant on her own.\\nLater that same morning, Hardin was arrested and brought to the sheriff's office. She was advised of her Miranda rights, and waived those rights before giving an oral statement in which she confessed to her involvement in the murder. Initially, she refused to give a second tape-recorded statement and became upset because she believed that her young daughter had been brought to the sheriff's department against her wishes. After speaking alone for several minutes with the chief deputy sheriff, however, Hardin agreed to give a second recorded confession.\\nAt trial, Hardin testified on her own behalf, and denied involvement in the murder. She claimed that she made her confession at the police station due to duress and in order to stop the police from questioning her young daughter.\\n1. The evidence introduced at trial was sufficient to enable a rational trier of fact to find Hardin guilty beyond a reasonable doubt of the crimes of which she was convicted.\\n2. Miranda warnings are required only when one's freedom has been restricted so as to render her in custody of the State. However, the determination of whether one is in custody depends upon the objective circumstances attending the particular interrogation at issue, and not upon the subjective views of either the person being interrogated or the interrogating officer. Put another way, the relevant inquiry in determining whether one is in custody is how a reasonable person in the suspect's position would perceive his or her situation. In determining whether Miranda warnings were required in a given situation, it is not relevant that investigators (1) might have focused their suspicions upon the person being questioned, or (2) have already decided that they will take the person into custody and charge them with an offense, so long as that individual is not in custody.\\n(a) We do not believe that a reasonable person in Hardin's situation at the 3:00 a.m. restaurant meeting would consider herself to be in the custody of law enforcement officers. The evidence of record introduced at the Jackson-Denno hearing shows that Hardin herself initiated and asked for the meeting. She went to the restaurant to meet with the officer voluntarily and of her own volition. During the restaurant meeting, she voluntarily confessed her involvement in the murder. Under these circumstances, we do not believe that a reasonable person would have believed herself to be in custody, and not free to leave the scene of an interview if they so wished. Consequently, the trial court did not err in admitting into evidence the statement made by Hardin to the officer while inside the restaurant, in which she admitted her involvement in the killing.\\n(b) Hardin argues that the trial court erred in admitting into evidence the tape-recorded statement made inside the officer's car at the restaurant meeting, because it was made in a custodial setting and she was not first advised of her Miranda rights. The State disagrees, and argues that the non-custodial nature attending the making of this statement is shown by the fact that after recording her statement, Hardin left the restaurant altogether and returned to her family*\\nPretermitting whether, when she made the recorded statement in the officer's car, Hardin's freedom had been restricted so as to render her in the custody of law enforcement officials, we conclude that any error associated with the admission of the statement at trial was harmless because it was cumulative of other evidence that was admitted properly. The tape-recorded statement made inside the car recounted the same facts and admissions included in Hardin's earlier statement made to the officer while inside the restaurant, and Hardin's second recorded statement, made the following day at the sheriff's department. As discussed, supra, in Division 2 (a), and infra in Division 2 (c), both of these statements were admitted properly at trial. Consequently, this enumeration is rejected.\\n(c) Hardin also claims that the trial court erred in admitting her third statement \\u2014 the second recorded statement \\u2014 made at the sheriff's office after her arrest. We first note that the statement's admission is presumptively valid because evidence introduced at the Jackson-Denno hearing showed that, before making the statement, Hardin was advised of her Miranda rights, stated that she understood those rights, and executed a waiver of rights form. Thereafter, Hardin did not invoke her right to have an attorney present during the interview.\\nAs discussed above, Hardin initially stated that she would not give a recorded statement, and was upset because she believed that her daughter had been brought to the sheriff's office. After being left alone with the chief deputy sheriff, Hardin agreed to give a recorded statement. She claims on appeal that while alone with the chief deputy sheriff, she was threatened. At the Jackson-Denno hearing, a law enforcement officer testified that Hardin's children were not at the sheriff's office while she was being interrogated, but were left at a nearby hotel with another officer. Also at the Jackson-Denno hearing, the chief deputy sheriff testified that while alone with Hardin, he informed her that Donaldson had been arrested, and had given a statement incriminating her, and that officers would like for Hardin to give a statement of her account of the circumstances surrounding the murder. Based upon this testimony, at the conclusion of the Jackson-Denno hearing, the trial court ruled that the statement was admissible.\\nThe trial court was entitled to weigh the credibility of witnesses testifying at the hearing, and to believe the more credible witness. Moreover, this Court is bound by the trial court's findings unless they are clearly erroneous. Having reviewed the transcript of the Jackson-Denno hearing, we determine that the trial court's factual findings are not clearly erroneous, and that the evidence supports the conclusion that Hardin's statement was knowingly and voluntarily made, and thus was properly admitted at trial.\\nDecided January 26, 1998.\\nJ. Patrick Claiborne, for appellant.\\nDaniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Beth Attaway, Assistant Attorney General, for appellee.\\nJudgment affirmed.\\nAll the Justices concur.\\nThe murder took place on October 25,1993, and Hardin was indicted on November 23, 1993 for malice and felony murder, and possession of a firearm during the commission of a crime. A jury trial was held on September 28-30, 1994, and Hardin was found guilty on all counts. The conviction for felony murder was vacated by operation of law, and by order entered on September 30,1994, the trial court sentenced Hardin to life imprisonment for the malice murder conviction and a consecutive five-year term for the firearms possession conviction. Hardin filed a motion for new trial on October 24, 1994, which was amended on March 14, 1997. The court reporter certified the trial transcript on January 11, 1995. The amended new trial motion was denied on May 21, 1997, and Hardin filed a timely notice of appeal in the trial court on June 18,1997. The appeal was docketed in this Court on July 17, 1997, and submitted for decision without oral argument on September 8, 1997.\\nJackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).\\nStansbury v. California, 511 U. S. 318 (114 SC 1526, 128 LE2d 293) (1994).\\nHodges v. State, 265 Ga. 870, 872-873 (463 SE2d 16) (1995); see Berkemer v. McCarty, 468 U. S. 420, 442 (104 SC 3138, 82 LE2d 317) (1984).\\nStansbury, supra; Beckwith v. United States, 425 U. S. 341, 347 (96 SC 1612, 48 LE2d 1) (1976); Berkemer v. McCarty, supra; O'Donnell v. State, 258 Ga. 782, 784 (374 SE2d 729) (1989).\\nSee Vaughn v. State, 261 Ga. 686, 687 (410 SE2d 108) (1991) (where suspect voluntarily accompanies police to police headquarters and gives a statement, later used against him, before leaving the police station of his own volition, the statement was non-custodial); Ferrell v. State, 261 Ga. 115 (410 SE2d 741) (1991); Hardeman v. State, 252 Ga. 286 (313 SE2d 95) (1984).\\nMcClendon v. State, 259 Ga. 778, 780 (387 SE2d 133) (1990).\\nId.\\nDaniel v. State, 268 Ga. 9 (485 SE2d 734) (1997).\\nHead v. State, 262 Ga. 795, 797 (426 SE2d 547) (1993).\"}"

ga/179043.json

@@ -0,0 +1 @@
+"{\"id\": \"179043\", \"name\": \"PFEIFFER v. DEPARTMENT OF TRANSPORTATION\", \"name_abbreviation\": \"Pfeiffer v. Department of Transportation\", \"decision_date\": \"2001-06-01\", \"docket_number\": \"A01A0219\", \"first_page\": \"643\", \"last_page\": \"648\", \"citations\": \"250 Ga. App. 643\", \"volume\": \"250\", \"reporter\": \"Georgia Appeals Reports\", \"court\": \"Court of Appeals of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T18:30:44.737202+00:00\", \"provenance\": \"CAP\", \"judges\": \"Johnson, P. J., and Ellington, J., concur.\", \"parties\": \"PFEIFFER v. DEPARTMENT OF TRANSPORTATION.\", \"head_matter\": \"A01A0219.\\nPFEIFFER v. DEPARTMENT OF TRANSPORTATION.\\n(551 SE2d 58)\", \"word_count\": \"1848\", \"char_count\": \"11843\", \"text\": \"Ruffin, Judge.\\nThis appeal stems from a tragic highway construction accident which caused the death of Robert Allen Pfeiffer. Pfeiffer's surviving spouse (\\\"Pfeiffer\\\") sued the Georgia Department of Transportation (\\\"DOT\\\"), alleging that the accident was caused by DOT's negligence. The trial court granted DOT's motion for summary judgment, and Pfeiffer appeals. For reasons that follow, we affirm.\\nSummary judgment is appropriate where the evidence of record \\\"show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" On appeal, we review a trial court's grant of summary judgment de novo.\\nThe facts underlying the trial court's judgment in this case are undisputed. The evidence shows that DOT contracted with Rosiek Construction Company (\\\"Rosiek\\\") to construct the Sidney Lanier Bridge. The contract describes the approximately $19 million, federally funded project as \\\"1.088 miles of const, of a north & a south approach bridge . . . over the Brunswick River for the proposed Sidney Lanier Bridge replacement. Also includes construction of a detour:\\\" The contract required that the construction be performed \\\"under the direct supervision and to the entire satisfaction of [DOT].\\\" However, the contract further provided, under a section titled \\\"Safety: Accident Prevention,\\\" that\\n[i]n the performance of this contract [Rosiek] shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). [Rosiek] shall provide all safeguards, safety devices, and protective equipment and take any other needed actions as it determines, or as the [DOT] contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job. . . . It is a condition of this contract, and shall be made a condition of each subcontract, which [Rosiek] enters into pursuant to this contract, that [Rosiek] and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor.\\nDuring the bridge project, Rosiek employed Mr. Pfeiffer as a construction worker. Mr. Pfeiffer was killed when a large concrete form, which was braced on only one side, fell on him. It is undisputed that, although DOT employed engineers and inspectors at the project site to monitor and supervise various aspects of the construction, including a traffic control plan, these workers and the DOT did not assume any responsibility for the construction workers' safety. This is because, as stated by a DOT representative, \\\"the specs read for themselves. The contractor is responsible for their own safety program.\\\"\\nPfeiffer's complaint alleged that, under DOT's contract with Rosiek, \\\"DOT undertook and assumed the responsibility to insure that proper safety devices and practices were utilized in the construction.\\\" Pfeiffer further alleged that \\\"DOT breached its duty of care to Robert Allen Pfeiffer by failing to take proper steps to insure that proper safety devices and practices were utilized.\\\" DOT denied these allegations and moved for summary judgment on the ground that, under the contract, DOT delegated the responsibility for administering on-site construction safety procedures to Rosiek.\\nPfeiffer responded to DOT's motion, arguing that because the bridge project was a federal aid construction project, 23 CFR \\u00a7 630.1010 (b) imposed a nondelegable duty on DOT to make certain that the safety aspects of the contract were effectively administered by the contractor. The cited regulation requires, in part, that \\\"[t]he highway agency [DOT] shall designate a qualified person at the project level who will have the primary responsibility and sufficient authority for assuring that the TCP [traffic control plan] and other safety aspects of the contract are effectively administered.\\\" Pfeiffer argued that the reference to \\\"other safety aspects\\\" required the DOT to assure Rosiek's compliance with the safety/accident prevention provisions in the contract.\\nIn granting DOT's motion, the trial court found that \\\"the responsibility for maintaining a safe work site . . . was left to the contractors performing the work, including Rosiek Construction.\\\" And, after reviewing four of the five subsections of 23 CFR \\u00a7 630.1010, the court found that they all dealt exclusively with traffic control plans. In light of these findings, the court concluded that the\\noperative scope of the phrase \\\"other safety aspects\\\" in [\\u00a7 630.1010 (b)] is limited to things in addition to traffic control plans which relate to dangers inherent in engaging in construction near traffic. . . . [The] regulation does not require [DOT] to undertake supervisory functions with respect to other aspects of the construction process.\\nPfeiffer challenges this ruling on appeal.\\n1. We note initially that the trial court properly construed, as a matter of law, the contract between DOT and Rosiek. Under Georgia law, trial courts are required to construe unambiguous and unequivocal contracts, and \\\"[t]he cardinal rule of construction is to ascertain the intent of the parties.\\\" If the parties' intent is clear from the contract terms, then a court should look to the contract alone. If the contract is ambiguous, a court may consider the attendant circumstances and the contracting parties' explanations to determine their intent. In addition, a court should construe a contract in its entirety and \\\"not merely by examining isolated clauses and provisions thereof.\\\"\\nIn the contract at issue, DOT and Rosiek unequivocally agreed that DOT would have a general duty to directly supervise the construction. However, the parties also specifically agreed that it was Rosiek's duty to comply with all safety laws and, more importantly, that Rosiek had the responsibility of ensuring that its employees and any subcontractors' employees were not working under hazardous or dangerous conditions.\\nWe do not believe that the parties' delegation of this responsibility to Rosiek is ambiguous. Furthermore, even if the contract were ambiguous, DOT's representatives stated their understanding that Rosiek was responsible for implementing its own safety program, and Pfeiffer did not point to any conflicting evidence of the parties' intent. In addition, considering the magnitude of the project, it makes sense that the parties would place ultimate responsibility for worker safety on Rosiek. While Rosiek, through its employees, was likely present wherever construction was being performed along the one-mile bridge and the detour, it would be unreasonable to expect a DOT employee to monitor every action of every contractor and subcontractor employee to ensure his or her safety. We therefore conclude that the trial court correctly found that the parties intended to delegate to Rosiek the responsibility for maintaining worker safety.\\n2. We must still consider, however, Pfeiffer's assertion that 23 CFR \\u00a7 630.1010 (b) precluded delegation of this responsibility. In construing \\u00a7 630.1010 (b), we employ the basic rules of statutory construction. Under these rules, we must look to the plain language of the regulation to determine its meaning. However, even if words are apparently plain in meaning, they \\\"must not be read in isolation. Instead, they must be read in the context of the statute as a whole.\\\"\\nDecided June 1, 2001\\nReconsideration denied July 19, 2001\\nJames L. Ford, Sr., for appellant.\\nThurbert E. Baker, Attorney General, Whelchel, Brown, Readdick & Bumgartner, J. Thomas Whelchel, Bondurant, Mixson & Elmore, Frank M. Lowrey TV, for appellee.\\nReading 23 CFR \\u00a7 630.1010 (b) in the context of the other subsections within that regulation, it is clear that the reference to \\\"other safety aspects\\\" refers to other traffic safety aspects. As pointed out by the court below, each of these subsections provides requirements relating exclusively to moving traffic safely through the road construction site. Indeed, \\u00a7 630.1010 is part of a larger set of regulations titled \\\"Traffic Safety in Highway and Street Work Zones.\\\" Although these regulations contemplate construction worker safety, such consideration is exclusively within the context of traffic safety. Accordingly, the trial court correctly concluded that \\u00a7 630.1010 (b) did not impose a nondelegable duty on DOT to make certain that the nontraffic safety aspects of the contract were effectively administered by Rosiek.\\n3. Pfeiffer also argues that other regulations and a federal statute imposed a nondelegable duty on DOT to administer construction safety. Pfeiffer, however, never raised these arguments before the trial court on summary judgment. It is well established that \\\"[t]his court will not consider arguments neither raised nor ruled on in the trial court and that are asserted for the first time on appeal.\\\" Accordingly, we conclude that Pfeiffer has waived these arguments for appeal.\\nJudgment affirmed.\\nJohnson, P. J., and Ellington, J., concur.\\nOCGA \\u00a7 9-11-56 (c).\\nSee Moore v. ECI Mgmt., 246 Ga. App. 601 (542 SE2d 115) (2000).\\nWe note that DOT was required to incorporate these safety provisions into its contract with Rosiek pursuant to 23 CFR \\u00a7 635.108 and 633.101-633.103 (requiring incorporation of form FHWA-1273 \\\"Required Contract Provisions, Federal-Aid Construction Contracts\\\"). The safety standards, promulgated under 29 CFR \\u00a7 \\u00cd926, which were incorporated by reference into the parties' contract, generally regulate safety and health for construction work sites. Subpart Q of \\u00a7 1926, which governs concrete and masonry construction, contains numerous safety requirements for concrete formwork and shoring. See 29 CFR \\u00a7 1926.703.\\n(Emphasis supplied.) 23 CFR \\u00a7 630.1010 (b).\\nThe trial court erroneously referred to subsection (d), which addresses traffic control training, as subsection (c). The court did not discuss the content of subsection (c), which actually deals with payment for traffic control devices.\\nOCGA \\u00a7 13-2-3; Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 316 (1) (b) (461 SE2d 282) (1995).\\nSee id.\\nSee OCGA \\u00a7 13-2-2 (\\u00cd).\\n(Punctuation omitted.) Richard Haney, supra. See also OCGA \\u00a7 13-2-2 (4).\\nSee Versico, Inc. v. Engineered Fabrics Corp., 238 Ga. App. 837, 841 (2) (520 SE2d 505) (1999) (stating rule that \\\"when specific provisions in a contract are applicable, they prevail over any conflicting general language\\\").\\nSee First Union Nat. Bank &c. v. Collins, 221 Ga. App. 442, 444 (471 SE2d 892) (1996); Sekula v. Fed. Deposit Ins. Corp., 39 F3d 448, 454, n. 14 (3rd Cir. 1994) (applying rules of statutory construction to agency regulation).\\nSee id.\\nIn re Diamond Mfg. Co., 123 Bankr. 125, 128 (S.D. Ga. 1990), aff'd sub nom. Moore v. Diamond Mfg. Co., 959 F2d 972 (11th Cir. 1992). See also Monticello, Ltd. v. City of Atlanta, 231 Ga. App. 382, 383 (1) (499 SE2d 157) (1998).\\nSee 23 CFR \\u00a7 630.1010.\\nSee 23 CFR \\u00a7 630, subpart J.\\nSee id. at \\u00a7 630.1002.\\nSee id. at \\u00a7 630.1004 (discussing implementation of the \\\"manual on uniform traffic control devices\\\" (\\\"MUTCD\\\")); 630.1006 (discussing policy to protect motorists and workers through the development of procedures consistent with the MUTCD).\\nChiaka v. Rawles, 240 Ga. App. 792, 796 (4) (525 SE2d 162) (1999) (citing Peavy v. Goodroe, 237 Ga. App. 36, 37 (1) (514 SE2d 699) (1999); Saffar v. Chrysler First &c., 215 Ga. App. 239, 240 (1) (450 SE2d 267) (1994)).\\nWe note, however, that the federal regulations cited at note 3, supra, required DOT to incorporate into its contract with Rosiek the provisions delegating safety management to Rosiek.\"}"

ga/183698.json

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+"{\"id\": \"183698\", \"name\": \"MILES v. THE STATE\", \"name_abbreviation\": \"Miles v. State\", \"decision_date\": \"1936-02-20\", \"docket_number\": \"No. 10855\", \"first_page\": \"75\", \"last_page\": \"78\", \"citations\": \"182 Ga. 75\", \"volume\": \"182\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-11T00:25:48.540094+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur, except\", \"parties\": \"MILES v. THE STATE.\", \"head_matter\": \"MILES v. THE STATE.\\nNo. 10855.\\nFebruary 20, 1936.\\nReheabins denied Maboh 24, 1936.\\nPaul PL. Field and L. T. Mann, for plaintiff in error.\\nM. J. Yeomans, attorney-general, John G. Mitchell, solicitor-general, B. D. Murphy, Allen Post, and J. T. Goree, contra.\", \"word_count\": \"1138\", \"char_count\": \"6234\", \"text\": \"Beck, Presiding Justice.\\nF. M. Miles was indicted for the murder of Harrison Henson. The jury found him guilty, without a recommendation. He made a motion for new trial, which was overruled, and he excepted.\\nThe original motion consists of the general grounds. The defendant filed an amendment to his motion, and the references here \\u00e1re to the special grounds as numbered in the amendment.\\nThe first ground is based on alleged error in overruling the objections of the movant to the following evidence of Jim Henson, a brother of the deceased: \\\"He said he thought he was going to die. He told me how this occurred. He said he didn't know why\\\" the boys wanted to do that way, there wasn't a word of warning given, that he didn't have any warning, and the first warning he had was a lick from behind him, and it knocked him down, and he was knocked unconscious for a little while; he said he didn't know how long that was, and when he come to himself he grabbed his hat and started to run, and one of 'them said something to. the other one, and he couldn't understand what it was, and he looked back over his shoulder and Miles was running up behind him with the gun, and he begged him not to shoot him,'and he shot him anyway, and that was the last he remembered about, it. He said there wasn't any words of warning anyway at all.\\\" The witness had testified that-this declaration was made seven or eight days after the shooting occurred; and that the declarant lived thirty-three or thirty-four days after that. The objection to the testimony just quoted was that \\\"it is hearsay, out of the presence of the defendant, and not in^the article of death.\\\" The court did not err in admitting this evidence. It was a question for the jury whether the declarant was in the article of death and conscious of his condition. Battle v. State, 92 Ga. 465 (2) (17 S. E. 861); Johnson v. State, 169 Ga. 814 (3) (152 S. E. 76). 30 C. J. 255, \\u00a7 498, note.\\nGround 2 complains that the court erred in failing to give in charge to the jury the law concerning dying declarations. This exception is without merit. In the first place, the movant fails to show what particular law in regard to dying declarations the court should have included in his instructions. In the next place, there was no request to charge on the subject. In the absence of a proper request in writing, the omission so to charge is not error. And besides, this ground does not point out what particular part of the law in reference to dying declarations the court should have given. See Smith v. State, 125 Ga. 300 (54 S. E. 124); Troup v. State, 150 Ga. 633 (104 S. E. 421); Williams v. State, 176 Ga. 372 (168 S. E. 5). This ruling also applies to the assignment in another ground based on the court's failure to charge on the law of confessions.\\nIn ground 3 error is assigned on the failure of the court to exclude the following evidence for the State: Q. \\\"As to where he pointed out Henson, as to where he claimed Armstrong shot him, would it have been possible for Armstrong to have shot Henson?\\\" A. \\\"I don't think I understand- . . I told this boy then, I says, 'If Armstrong was over there, I don't see how Armstrong could have shot Henson, where he was, if he was shot on the other side of the head, and going in his head the way it did,' and that was one of the reasons that I arrested Mr. Miles.\\\" It is insisted that the failure to exclude this evidence was error, because it expressed to the jury the opinion of the witness as to the guilt of the defendant, and that such an expression of opinion by the witness had an effect upon the minds of the jury that was prejudicial to the rights- of the defendant. Admitting this evidence over the objection stated was not erroneous for any reason assigned. The ground of the motion does not show to whom the remark of the witness was addressed. If it was addressed to the defendant (and it is inferable that it was), the ruling was certainly not error.\\nThe fourth ground alleges error because the court failed to give in charge the law of manslaughter. This ground presents no question for decision, as it fails to point out whether the court should have charged on the subject of voluntary or involuntary manslaughter. \\\"A complaint in a motion for new trial of a failure of the court to charge the jury 'in reference to manslaughter' can not be ruled on. A valid assignment of error must be complete in itself; and it is essential that such ground of the motion indicate the degree of manslaughter, whether voluntary or involuntary.\\\" Knight v. State, 148 Ga. 40 (95 S. E. 679).\\n. There was sufficient evidence to authorize the jury to find that the venue of the crime was as laid in the indictment. \\u2022 A witness testified that a certain log, the location of which was material in proof of the venue, and pools of blood, were in Whitfield County; and there was evidence that the body of the deceased was found in Whitfield County.\\nThere was sufficient evidence to authorize the verdict.\\nJudgment affirmed.\\nAll the Justices concur, except\"}"

ga/21788.json

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+"{\"id\": \"21788\", \"name\": \"Ross vs. Jordan\", \"name_abbreviation\": \"Ross v. Jordan\", \"decision_date\": \"1879-02\", \"docket_number\": \"\", \"first_page\": \"298\", \"last_page\": \"299\", \"citations\": \"62 Ga. 298\", \"volume\": \"62\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T22:28:36.399964+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ross vs. Jordan.\", \"head_matter\": \"Ross vs. Jordan.\\n1. A promise made after discharge in bankruptcy to pay a debt provable in bankruptcy, and from the liability to pay which the defendant was discharged, need not be in writing. Such promise is valid, the consideration thereof being the moral obligation to pay a just debt.\\n2. If the note be not accurately and fully set out in the declaration, yet is substantially referred to therein, such inaccuracy may be cured by amendment, and the action should not be dismissed.\\nBankruptcy. Promissory notes. Statute of frauds. Contracts. Before Judge Hood. Terrell Superior Court. November Term, 1878.\\nRoss brought assumpsit against Jordan, alleging that the latter had made a promissory note to him which was due and unpaid ; that defendant had, since the giving of such note, been through bankruptcy and been discharged ; but since his discharge, he had made a payment on the note and promised to pay the balance, which he had failed to do.\\nDefendant demurred to the declaration (1) because it showed that the debt was discharged and the new promise to pay was without consideration; and (2) because no copy of the note or sufficient description of it was set out.\\nThe court dismissed the case, and plaintiff excepted.\\nGuerry & Parks ; DuPont Guerry, for plaintiff in error,,\\ncited 44 Yt., 518; 27 Ark., 619.\\nB. B. Hinton, for defendant,\\ncited Code, \\u00a72934; 56 Qa.y 570; 6 II., 31.\", \"word_count\": \"451\", \"char_count\": \"2616\", \"text\": \"Jackson, Justice.\\nThe single question is, was the court right in sustaining the demurrer ? We think not. We know of no law which requires the promise to pay a debt' from which the bankrupt had been discharged to be in writing. The moral obligation to pay the debt is a sufficient consideration to support the new promise; and such promise being made after the discharge of the defendant in error in bankruptcy, he is bound thereby and ought to pay it. The demurrer admits the truth of the facts set out in the declaration and amendments, and such being the facts, the law gives a right of action to the plaintiff and he may recover, unless some reason other than appears from the declaration and demurrer be given by defendant in bar of the suit. See Bump on Bankruptcy, 743; 44 Vermont, 518; 27 Ark., 619.\\nIf the note be not described with sufficient fullness, the declaration may be amended so as to set it out in full, it being substantially referred to therein. On the facts set out substantially, the plaintiff ought to be allowed to go to the jury, amending any defect of pleading under the broad provisions of our Code. Code, \\u00a73479.\\nThe court, therefore, erred in dismissing plaintiff's declaration.\\nJudgment reversed.\"}"

ga/21858.json

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+"{\"id\": \"21858\", \"name\": \"Campbell & Jones vs. Murray et al.\", \"name_abbreviation\": \"Campbell & Jones v. Murray\", \"decision_date\": \"1878-08\", \"docket_number\": \"\", \"first_page\": \"86\", \"last_page\": \"97\", \"citations\": \"62 Ga. 86\", \"volume\": \"62\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T22:28:36.399964+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Campbell & Jones vs. Murray et al.\", \"head_matter\": \"Campbell & Jones vs. Murray et al.\\n1. When an individual farms upon the land of other persons without their consent and against their objection, and contracts debts in his own name for advances and supplies to carry on the business, the debts are his own, and not those of the owners of the premises. This is true though the owners may be his wife and her sister, and though he may intend thejprofits for their benefit.\\n2. A conveyance of the wife\\u2019s land to secure the husband\\u2019s debt is void.\\n3. If a man\\u2019s sister-in-law, of full age, though residing in his family and looking up to him for protection, becomes his surety and conveys her land to his creditor to further seeure the debt, she is bound just as any other person performing the like acts would be. Any fraud or misrepresentation practiced by him to influence her action would not affect the creditor unless the creditor participated in the wrong or had notice thereof.\\n4. A debtor is not the agent of his creditor in procuring security, though the creditor designate the very security required, and furnish to the debtor the instruments of writing which he demands to be executed by third persons as a condition precedent to granting indulgence on the debt.\\n5. A deed dated, signed and attested whilst the usury laws were in force, with no intention of the parties to postpone delivery, was not relieved from the operation of those laws by the absence of the grantees from the place of execution, and the failure of the deed to come to their actual possession until after said laws were repealed.\\n6. Though a deed be void for usury, equity will not decree its cancellation without payment or tender of the principal and lawful interest. Whoever would have equity must do equity.\\n7. In polling the jury, the better form of question is, \\u201c Is that, or is it not, your verdict? \\u201d -31 Ga., 861, \\u201c Did you consent to that verdict, and do you now consent?\\\" is not substantially different from this form. An answer by a juror, to the effect that he had agreed to the verdict in the jury room, but that he did not think it was exactly right, should not be taken as committing him to the verdict absolutely. Assent in the jury room, where there is to be an immedate delivery into court, is not sufficient. It is necessary to abide by such assent and adhere to it until the verdict is no longer in fieri. When one or more of the jurors cannot face the parties and the public with the finding, there should be further deliberation.\\nEquity. Debtor and creditor. Husband and wife. Principal and agent. Deeds. Usury. Jury. Yerdict. Before A. 8. Giles, Esq., Judge fro hao vice. Houston Superior Court. November Term, 1877.\\nMary McCallie died in October, 1871, leaving Amanda L. Murray, Henrietta C. Anneker, her sisters, and A, P. Anneker and J. S. Anneker, her brothers, all in South Carolina, her heirs at law, in possession of a plantation containing fifteen hundred and nineteen acres, in Houston county, and a stock of mules and other personal property as usual on a farm. She died indebted to Campbell & Jones in five hundred and thirty-nine dollars and six cents for material and expenses furnished by them, who were factors, warehouse-men and commission merchants, in Macon, Ga., for running the farm in the year 187i.-\\nThis plantation was a part of the estate of one Anneker, who lived and died in South Carolina previous to 1871, leaving these five persons- \\u2014 that is, Mrs. McCallie, Miss Anneker, Mrs. Murray and their two brothers, as his heirs at law.\\nAfter the death Mrs. McCallie, in the fall of 1871, under an agreement that Mrs. Murray and her sister, Miss Anneker, should take the plantation and property in Houston, and the two brothers the property in South Carolina, the estate of their father was divided.\\nMurray came from South Carolina and took possession of the plantation and property in Houston county for his wife and his sister. Finding the farm destitute of corn, meat, mules and other necessary material to make a crop for the year 1872, and having no means or credit of his own, after telling Campbell & Jones the condition of the property, they agreed to let him have money and supplies; and to secure them in such advances, the amount of Mrs. McCalle\\u2019s debt, and to pay for some mules he had bargained for on that day, he drew his draft for a sum that, when discounted, would produce the amount of her debt, and another draft to pay for the mules, both of which Campbell & Jones accepted, and executed a mortgage on the undivided half of the plantation and property in Houston county.\\n.In the spring of 1873, the farm having failed to pay, the parties came to a settlement, when Murray, his wife, and his sister, Miss Anneker, gave to Campbell & Jones, on the 11th of February, 1873, their three drafts to settle the amount due on the advances.\\nThese drafts were drawn for such sums as, when discounted, would produce the exact sum that was due.\\nOne of these drafts was for the sum of $770.30, due the 15th of September, 1873; one for $965.00, due the 1st of December, 1873, and the other for $826.00, due the 1st of November, 1873, all of which were accepted. On the 15th February, 1873, they made an absolute deed to Campbell & Jones for the express consideration of $2,600.00 for 1,100 acres of said plantation. This deed was made to secure these drafts, and when executed the prior mortgage was canceled and satisfied.\\nUnder these circumstances, Mrs. Murray and Miss Anneker filed their bill against Campbell & Jones and Murray to set aside this deed on the alleged grounds that it was given to secure the debt of W. L. Murray; that its execution by complainants was obtained upon fraudulent representations of Murray, acting in so doing as the \\u201e agent of Campbell & Jones, and by reason of his persuasions and his influence over his wife and - sister-in-law, who lived in the house with him, the fraudulent representations being that she, Miss-Anneker, should have more confidence in him than to fear the signing of said paper would deprive her sister of a home; that it was a mere securityship; that he would certainly pay the money in the fall, and that no injury would result to her or her sister, and she was not advised of the nature, legal effect or consequence of the paper; that the deed was tainted with usury; that at the-time this deed was made they did not have the legal title. The deed from their brothers to them was made subsequent \\u2014that is, in March, 1873.\\nThe answer of Campbell & Jones, after stating how complainants acquired title, and the indebtedness of Mrs. McCallie to them, alleged that they, complainants, in order to supersede the necessity of administration, agreed to assume the payment of said debt, which, with sums advanced \\u2022to them from time to time, amounted in the aggregate to $2,487.21, all of which went for the use and benefit of said parties and their said estate. They admit the charges as to the execution of the mortgage and the deed, but state that complainants were allowed to remain on the land with the distinct understanding that if they failed to discharge their indebtedness by the 1st of January last, they should yield possession, and the land should become absolutely and unconditionally the property of defendants; that complainants have failed either to pay the debt or to yield possession. They prayed that the possession of the land be delivered to them together with rents, etc.\\nBy way of cross-bill, they prayed that if their title is not complete at law, the deed mentioned may be considered and treated as an equitable mortgage, and the same foreclosed ; that they may have a general judgment against complainants and defendant Murray for the amount due them ; also, for general relief.\\nIn addition to the facts above stated, the evidence disclosed that in 1872 Murray conducted the plantation on his own account, and against the consent and protest of complainants; that they did not even know from whom he was obtaining the supplies with which to carry on his farming operations, though, if he had been successful, the profits would have enured to their benefit. That the deed was prepared in Macon and sent by Campbell & Jones to Murray, in Houston county, for execution; that Murray understood that in procuring the execution of the deed, he was acting as the agent of Campbell & Jones; that the deed was executed by complainants at the instance of Murray, under the circumstances detailed in the bill, and returned by him to the grantees. That cotton sufficient was turned over to Campbell & Jones to discharge the indebtedness contracted by Mrs. McCallie, and hence the entire amount of the present indebtedness was created for money, supplies, etc., used by Murray in conducting the planting interests, except $50.00 or $60.00, applied to his own use. That though the estate of Mrs. McCallie was divided as above indicated in the fall of 187i, yet formal deeds were not passed between the heirs until March, 1873. That it was agreed between Murray and Campbell & Jones that the land was to be reconveyed on payment of the debt, though no formal bond to that effect was given. That there was usury in the indebtedness thus secured. That Miss Anneker was a member of Murray\\u2019s family, and looked to him for protection ; that no one advised her in reference to the execution of the deed but Murray, and she had no opportunity to confer with' counsel.\\nThe jury returned the following verdict:\\n\\u201cWe, the jury, find and decree that the debt for which the deed in controversy w*as executed, was the individual debt of defendant, W. S, Murray; that in taking said deed the said W. S. Murray acted as the agent of Campbell & Jones ; that said debt was not made for the benefit of complainants, and that they did not ratify the acts of the said W. S. Murray when he executed the deed set up as a ratification of the actings and doings of said W. S. Murray in and about the creation of said debt.\\n\\u201cWe further find that there was usury in the debt which the said deed was given to secure, and that Campbell & Jones got the benefit of said usury.\\n\\u201c That said deed, and the drafts which constitute the consideration for said deed, were executed and delivered prior to the nineteenth day of February, 1873, and that the said deed is void in consequence of the fraud, misrepresentation and undue influence of the said W. S. Murray, agent off Campbell & Jones, practiced upon and made to complainants at the time he procured the signatures of complainants to said deed.\\u201d\\nThe defendants, Campbell & Jones, moved for a new-trial upon the following, among other grounds :\\n1. Because the verdict was contrary to the law and the-evidence.\\n2. Because the court erred in charging as follows :\\u25a0 \\u201cWere the drafts in question given to pay a debt of Mur ray, the husband % If it was his debt his wife could not be his security or make this deed, for the payment of this debt, or to secure it.\\u201d\\n3. Because the court erred in the following charge : \\u201c If you believe it was her debt then she could make a deed to secure it. If Murray was her agent to make the debt, she is bound by his acts. The mere fact of his being her agent does not imply authority to bind the corpus of the property.\\u201d\\n4. Because the court erred in this charge: \\u201c If there were defects in the mortgage and they gave this deed to remedy such defects, it is a ratification, unless the deed is otherwise affected as charged in the bill.\\u201d\\n5. Because the court erred in this part of the charge : \\u201c Did complainants own the land ? Was it their farm ? Did they know what Murray was doing in bringing supplies in for said farm from Campbell & Jones? If they did, they are bound for such debts so contracted, if they did not notify Campbell & Jones of their dissent before made.\\u201d\\n6. Because the court erred in the following part of its charge : \\u201c'If Murray and his wife were married since 13th December, 1866, then this land cannot be held subject to his debts.\\u201d\\n7. Because the court erred in this part of its charge: \\u201cIf Murray was Campbell & Jones\\u2019 agent in procuring these drafts and this deed from his wife and her sister, a delivery of the deed to Murray was a delivery to Campbell & Jones. If delivered to him before the 19th of February, 1873, it does not come under the repeal of the usury laws, of that date.\\u201d\\n8. Because the court erred in this part of its charge: \\u201c Was there usury in these notes (drafts) ? Did Campbell & Jones reserve more than lawful interest ? If they did they are bound by it; that is, the deed in that case would be void, and they could not recover the land under it. Tf they received or reserved none this law does not apply to them, and they can recover if these parties are bound otherwise. The date of the contract, that is the drafts, controls as to whether the deed is affected by usury or not.\\u201d\\n9. Because the court erred in'this part of its charge : \\u201cIf they, Campbell & Jones, were accommodation acceptors and lent their credit to these drawers, they are not affected by the usury, although usury may be in the drafts, provided they neither received or agreed to receive any benefit therefrom.\\u201d\\n10. Because the .court erred in this charge : \\u201c If they, complainants, agreed to pay Campbell & Jones usury in these drafts, and the deed wa.s made to secure them, then the deed is void.\\u201d\\n11. Because the court erred in the following part of its charge: \\u201c Inquire whether Murray, the husband of one, and the brother-in-law of the other of the complainants, was Campbell & Jones\\u2019 agent in procuring the execution of the deed. If he was, they, Campbell & Jones, are bound by what he said and did -at that time in procuring the execution of the deed, and if he at that time, as such agent, used any undue influence, made any fraudulent representations by which they were induced to make the deed, then they are not bound by it. But mere persuasion is not undue influence.\\u201d\\n12. Because the verdict was not the result of the free, full and voluntary assent of all the jurors trying the same, in this, that in polling the jury, when the name of P. W. Stubbs was called, the court asked\\u2019 him, \\u201c Is this your verdict?\\u201d he replied, \\u201cI suppose so,\\u201d or words to that effect. Then, upon suggestion of counsel for complainants, the court changed the form of the question to \\u201c Did you consent to that verdict, and do you now consent,\\u201d without objection to the change on the part of respondents. The juror then said that he had agreed to the verdict in the jury-room, but he didn\\u2019t think it was right; that he had been charged with making two mistrials, and he didn\\u2019t wish to be the cause of another. Tharpe and Saules, when polled, also said that they had agreed to the verdict, but didn\\u2019t think it was exactly right.\\nThe impression produced on the mind of the court was, that these three jurors had agreed to or given in very reluctantly to the verdict, and had very grave doubts as to its entire correctness.\\nDefendants therefore objected to said verdict being received and recorded, because it was not the unanimous verdict of said jury, and demanded that the jury be sent back to their room to make up a verdict under the law, which the court refused, but ordered the verdict to be delivered in the form in which it was returned and recorded, and it was done.\\n(This ground is modified in accordance with the qualification of the presiding judge.)\\n13. Because the verdict was contrary to equity.\\nThe motion was overruled, and the defendants, Campbell & Jones, excepted.\\nWooten & Simmons; R. E. Eton, for plaintiffs in error,\\ncited, as to whether wife\\u2019s or husband\\u2019s debt, 9 Ga., 223 ; 59 lb., 380. As to usury, 1 Story\\u2019s Eq., \\u00a764, e, \\u00a7\\u00a7301-2. Verdict not unanimous, 31 Ga., 660.\\nS. Hall; W. S. Wallace; W. O. Winslow, for defendants,\\ncited Code, \\u00a7\\u00a71754, 1774, 1783, 1785; 59 Ga., 254; 57 lb., 207 ; 54 lb., 543; 611 b., 662; 56 Ga., 47; 48 lb., 365 ; 28 lb., 525 ; 60 lb., 566. As to Miss Anneker\\u2019s rights, Code, \\u00a7\\u00a73173, 3175, 3177 ; DeOol. on Guaranty, 372-375 ; 14 C. B., 385 ; 17 lb., 482; 15 Sim., 437; 16 lb., 58 ; 27 Ga., 457. As to usury, Code, \\u00a72025 ; 54 Ga., 554 ; 55 lb., 412. Instrument cannot be held to be a mortgage, Code, \\u00a71969.\", \"word_count\": \"3644\", \"char_count\": \"20477\", \"text\": \"Bleckley, Justice.\\nA husband farms upon land belonging to Mb wife and her sister, but without their consent and against their objection, intending the profits for their benefit. Does this en title him to contract debts for advances and supplies to carry on the business, and bind them or their property for the payment of such debts ? To ask the question is to answer it in the negative. 55 Penn., 386; 103 Mass., 560; 5 R. I., 376; 1 Coldw., 67. It does not appear that any profits were produced, or, if so, that they went to the ladies.\\nA conveyance of the wife's land to secure the husband's debt is simply void. Code, \\u00a71783.\\nRut the wife's sister is left free by the law to assist her brother-in-law in his business, just as if she bore no relation to him whatever. If she is of full age, though she reside in his family and look to him for protection, she may become his surety, and may convey her land to his creditor to further secure the debt, and she will be bound, as any other person would be by like acts and engagements. Nor will any fraud or misrepresentation practiced upon her by the debtor affect the creditor, though the latter be incidentally benefited thereby, unless he participated in the same, or had notice of it.\\nIn this case, it was-sought to affect the creditors on the doctrine of agency; that is, by treating the debtor as the agent of the creditors in procuring the execution of the papers. The fraud committed by'the debtor on his sister-in-law would thus, it was argued, be the fraud of the creditors, perpetrated through their agent; Rut in causing his sister-in-law to execute the papers, the debtor acted for himself, and not as the representative pf his creditors. He desired indulgence upon his debt, and to obtain it, undertook to furnish the required security. The creditors had a right to dictate the terms on which they would grant indulgence3 and to draft the very instruments which must be executed before it would be extended. To say that the debtor acted as their agent in complying with the conditions prescribed to him, would be to confound all the established distinctions between independent and representative action. The debtor was his own principal, and the lady must be considered as having signed at his instance, and for his accommodation. Any other view of the matter would require us to regard the kindly offices of sureties as extended to creditors rather than to debtors.\\nOn the question of usury, the deed is to be judged by the law as it existed at the time of execution. There was no intention to postpone delivery, and when the deed reached the hands of the creditors, it had effect from the time it bore date. The repeal of the usury laws in the interval, did not erase the taint. It is not necessary that the grantees in a deed should be actually present at the time a conveyance is executed. . It may become completely operative though they never see it. In other words, there may be a virtual legal delivery to the absent. A delivery to the messenger or carrier by which it was transmitted, or intended to be transmitted, would be sufficient.\\nRut though a deed be void for usury, why should it be canceled so long as the debt and lawful interest remain unpaid? The cancellation of a deed is equitable relief, not a legal remedy; and equity grants its relief against usury on terms. \\\"Whoever would have equity must do equity. 4 Ga., 239, 240, 241; 9 Ib., 137; 10 Ib., 389; 1 Story's Eq., 64 e, 301; Tyler on Usury, 435, et seq. It is a mistake to suppose that because a usurious deed is not available as title, the maker can call for it at pleasure and have it canceled. Even if it be entirely worthless to the creditor, he has a right to hold if it he obtained it lawfully and without fraud. It is his property until the purpose for which it was given has been subserved, so far as that purpose is consistent with equity and good conscience. And what under the sun is more consistent with the best equity and the best conscience than for a creditor to receive his principal and lawful interest ? Let him have these, and then let him be constrained to surrender or cancel his securities, be they real or only nominal.\\nOn themode of polling the jury, \\u00e9nough is said in the seventh head-note. There was no legal verdict. See 6 Johns., 68.\\nJudgment reversed..\"}"

ga/263459.json

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+"{\"id\": \"263459\", \"name\": \"LOWERY v. BROWNING, Next Friend\", \"name_abbreviation\": \"Lowery v. Browning\", \"decision_date\": \"1956-09-07\", \"docket_number\": \"19410\", \"first_page\": \"586\", \"last_page\": \"589\", \"citations\": \"212 Ga. 586\", \"volume\": \"212\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T17:25:12.140726+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"LOWERY v. BROWNING, Next Friend.\", \"head_matter\": \"19410.\\nLOWERY v. BROWNING, Next Friend.\\nArgued July 9, 1956\\nDecided September 7, 1956.\\nJoe W. Rowland, for plaintiff in error.\\nCarl K. Nelson, Nelson & Nelson, contra.\", \"word_count\": \"678\", \"char_count\": \"3712\", \"text\": \"Head, Justice.\\n\\\"A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good in substance.\\\" Pierce v. Harrison, 199 Ga. 197, 198 (3a) (33 S. E. 2d 680); Reardon v. Bland, 206 Ga. 633 (5) (58 S. E. 2d 377). In the present case the motion to dismiss, in the nature of a general demurrer, and the general demurrers were properly overruled if the petition stated a cause of action for any of the relief prayed.\\nIt has been held by this court that a wife who was incompetentj at the time the divorce decree was granted might sue by next friend to vacate and set aside the decree. Chambers v. Chambers, 206 Ga. 796 (58 S. E. 2d 814).\\nDespite an adjudication of insanity, if no guardian has been appointed, the validity of a contract depends upon sanity at the time of the execution of the contract. In such a case the law presumes a continuance of insanity, and one contracting with such person has the burden of proving sanity at the time the contract is executed. Akin v. Akin, 163 Ga. 18 (2) (135 S. E. 402); Martin v. Martin, 185 Ga. 349 (195 S. E. 159); Summer v. Boyd, 208 Ga. 207, 211 (3) (66 S. E. 2d 51). In the present case, in so far as the divorce decree between the parties is concerned, and the contract entered into prior to the filing of the divorce petition, the burden would be upon the husband to establish the sanity of the wife at the time of the execution of thq contract wherein she acknowledged service of the petition for divorce and otherwise contracted with the husband.\\n\\\"A wife can not separate from her husband or live in a state of separation from him, take charge of the minor children, and maintain a suit against the husband for necessaries furnished them. If the husband had made no adequate provision for the support and maintenance of the children, and a stranger had furnished them the necessaries of life, he could maintain a. suit against the delinquent father for the cost and value of the necessaries furnished; or a divorced wife, after dissolution of the bond of marriage between herself and husband, where no provision had been made for the support of her minor children, might, just as a stranger (for after divorce she would be a stranger), maintain an action against jher former husband for necessary expenses incurred in maintaining and nourishing their minor children.\\\" Smith v. Smith, 136 Ga. 531, 533 (71 S. E. 869); Brown v. Brown, 132 Ga. 712 (64 S. E. 1092, 131 Am. St. R. 229); Garrett v. Garrett, 172 Ga. 812 (159 S. E. 255).\\nIn the present case, if the divorce decree is void, as alleged, Mrs. LeMerle Browning Lowery has at all times been the wife of the defendant and could not, therefore, sue for necessaries furnished one of their minor children. On the other hand, if the divorce decree should be proved to be valid, she can maintain an action for necessaries furnished their minor child.\\nCounsel for the defendant strongly relies upon laches. There is no merit in the contention that the wife is barred by laches. Code \\u00a7 3-801; Taylor v. Colley, 138 Ga. 41, 45 (74 S. E. 694); Brown v. Carmichael, 149 Ga. 548 (101 S. E. 124); Morris v. Mobley, 171 Ga. 224 (155 S. E. 8); Nelson v. Estill, 190 Ga. 235 (9 S. E. 2d 73); Lewis v. Patterson, 191 Ga. 348 (12 S. E. 2d 593); Mullins v. Barrett, 204 Ga. 11 (48 S. E. 2d 842).\\nThe petition stated a cause of action for relief only as herein indicated. The court did not err in overruling the general demurrers and the motion to dismiss.\\nJudgment affirmed.\\nAll the Justices concur.\"}"

ga/266971.json

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+"{\"id\": \"266971\", \"name\": \"MILLER, Administrator, v. MILLER\", \"name_abbreviation\": \"Miller v. Miller\", \"decision_date\": \"1957-07-09\", \"docket_number\": \"19764\", \"first_page\": \"435\", \"last_page\": \"435\", \"citations\": \"213 Ga. 435\", \"volume\": \"213\", \"reporter\": \"Georgia Reports\", \"court\": \"Supreme Court of Georgia\", \"jurisdiction\": \"Georgia\", \"last_updated\": \"2021-08-10T21:03:24.142483+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"MILLER, Administrator, v. MILLER.\", \"head_matter\": \"19764.\\nMILLER, Administrator, v. MILLER.\\nSubmitted July 8, 1957\\nDecided July 9, 1957.\\nJoseph S. Crespi, for plaintiff in error.\\nRobert Carpenter, A. Tate Conyers, contra.\", \"word_count\": \"127\", \"char_count\": \"767\", \"text\": \"Mobley, Justice.\\nThis being a case in which it was sought by petition for certiorari to review an order of the court of ordinary allowing a year's support to- a child born out of wedlock, whose parents subsequently married, making the child legitimate, and to- correct alleged errors in said order, and the issues involved being ones of law only, the Court of Appeals, and not this court, has jurisdiction to review the exception to the order of the trial court dismissing said petition for certiorari. Code (Ann.) \\u00a7 2-3704, 2-3708.\\nTransferred to the Court of Appeals.\\nAll the Justices concur.\"}"