Groover. Judgment for plaintiff, and defend- | for new trial denied, and the former brings error. Affirmed. ant brings error. Affirmed. (21 Ga. App. 583) (Court of Appeals of Georgia, Division No. 2. (Syllabus by the Court.) SETTING ASIDE VERDICT. Under the particular facts of this case the court did not err in overruling the motion to dismiss the petition to set aside the verdict and judgment; nor did it err in setting aside the verdict and judgment. (21 Ga. App. 545) ZURLINE et al. v. PORTER. (No. 8655.) (Court of Appeals of Georgia, Division No. 1. Jan, 21, 1918.) (Syllabus by the Court.) 1. CHARGE OF COURT. The excerpts from the charge of the court, when read in connection with the entire charge and as adapted to the pleadings and contentions of the parties, are not erroneous. 2. SUFFICIENCY OF EVIDENCE-MOTION FOR NEW TRIAL. The evidence authorized the verdict, and it Error from Superior Court, Fulton County; was not error, for any of the reasons assigned, to overrule the motion for a new trial. W. D. Ellis, Judge. Error from Superior Court, Fulton Coun Action by W. A. Albright, for use, etc., against the American Central Insurance Com-ty; W. D. Ellis, Judge. pany. Judgment for defendant, and plaintiff brings error. Affirmed. See, also, 94 S. E. 561. Jas. L. Key, of Atlanta, for plaintiff in erSmith, Hammond & Smith, of Atlanta, for defendant in error. Tor. BLOODWORTH, J. Judgment affirmed. BROYLES, P. J., and HARWELL, J., con cur. Action between L. H. Zurline and others and J. H. Porter. Judgment for the latter, and the former brings error. Affirmed. J. L. Anderson, of Atlanta, for plaintiffs in error. Luther Z. Rosser and Clifford L. Anderson, both of Atlanta, for defendant in error. LUKE, J. Judgment affirmed. WADE, C. J., and JENKINS, J., concur. (21 Ga. App. 654) VAUGHAN v. WIGGINS. (No. 9191.) (21 Ga. App. 534) (Court of Appeals of Georgia, Division No. 2. McBRYANT v. SOUTHERN COTTON OIL Jan. 22, 1918.) (Syllabus by the Court.) 1. NEW TRIAL 150(1)-NEWLY DISCOVERED EVIDENCE-DEFECTS IN MOTION. The first ground of the amendment to the motion for a new trial, relating to alleged newly discovered evidence, is fatally defective, as the affidavit of the witness upon which the ground is based is not supported by the other affidavits required by section 6086 of the Civil Code of 1910. 2. APPEAL AND ERROR 837(8)—MOTION FOR NEW TRIAL-CONSIDERATION. The remaining ground of the amendment to the motion for a new trial, being disapproved by the trial judge, cannot be considered. 3. SUFFICIENCY OF EVIDENCE-REFUSAL OF NEW TRIAL. The verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial. Osborne, Lawrence & Abrahams, of Savannah, for plaintiff in error. Geo. W. Owens and O'Byrne, Hartridge & Wright, all of Error from Superior Court, Coweta Coun- Savannah, for defendant in error. ty; J. R. Terrell, Judge. Action between Beulah Vaughan and C. R. LUKE, J. The only question raised in this Wiggins. Judgment for the latter, motion case is whether or not the court erred in (21 Ga. App. 653) J. F. MADDEN & SONS v. BECKHAM. (No. 9166.) Jan. 22, 1918.) granting a nonsuit. Inasmuch as we have, after a careful examination of the evidence, decided that the judgment of nonsuit was improper, it might work injury to the parties (Court of Appeals of Georgia, Division No. 2 to discuss the evidence. Suffice it to say that the evidence tends to establish the case as pleaded by the plaintiff, and the questions as to alleged negligence were, under the evilence in the case, purely jury questions. The court erred in granting the nonsuit. Judgment reversed. (Syllabus by the Court.) 1. APPEAL AND ERROR 719(6)-DIRECTED. No assignment of error having been made upon the direction of a verdict in this case, the Court of Appeals has no authority to decide whether the trial judge erred in so directing it. Dickenson v. Stults, 120 Ga. 632, 48 S. E. E. 1052. WADE, C. J., and JENKINS, J., concur. 173(1); Arnold v. Ragan, 5 Ga. App. 254, 62 S. REFUSAL OF 2. SUFFICIENCY OF EVIDENCE NEW TRIAL. The verdict was authorized by the evidence, MULLIS, Sheriff, v. FARMERS' GIN CO. and the court did not err in refusing to grant (21 Ga. App. 585) (No. 8925.) (Court of Appeals of Georgia, Division No. 2. Jan. 21, 1918.) (Syllabus by the Court.) DIRECTED VERDICT. Under the pleadings and the agreed statement of facts in this case, the court did not err in directing a verdict for the defendant. Error from City Court of Eastman; J. A. Neese, Judge. Action by C. N. Mullis, Sheriff, for use, etc., against the Farmers' Gin Company. Judg ment for defendant upon a directed verdict, and plaintiff brings error. Affirmed. O. J. Franklin, of Eastman, for plaintiff in error. J. H. Milner, of Eastman, for defendant in error. BLOODWORTH, J. Judgment affirmed. a new trial. BROYLES, P. J., and HARWELL, J., con- (Court of Appeals of Georgia, Division No. 1. Cur. (21 Ga. App. 602) JACKSON v. MOORE et al. (No. 9172.) (Court of Appeals of Georgia, Division No. 2. Jan. 21, 1918.) (Syllabus by the Court.) OVERRULING OF CERTIORABI. Under the facts of the case the judge of the superior court did not err in overruling the certiorari. Error from Superior Court, Fulton County; W. D. Ellis, Judge. Action between L. B. Jackson and H. D. & J. D. Moore. Judgment for the latter, certiorari overruled, and the former brings error. Affirmed. Louis H. Foster, of Atlanta, for plaintiff in error. C. F. Wells, of Atlanta, for defendants in error. BROYLES, P. J. Judgment affirmed. BLOODWORTH and HARWELL, JJ., con cur. Jan. 22, 1918.) (Syllabus by the Court.) MALICIOUS PROSECUTION 42-PROSECUTION Where it is alleged in a suit for damages for malicious prosecution that the prosecution was instituted by the agent of the defendant, it must be proven that the agent was at that time acting within the scope of his employment or at the direction or command of his principal. The plaintiff having failed to prove his case as laid in his petition, the court did not commit error in granting a nonsuit. Error from City Court of Floyd County; W. J. Nunnally, Judge. Action by Roy Glass against the Brittain Bros. Company. Judgment of nonsuit, and plaintiff brings error. Affirmed. Bernard J. Mayer, of West Point, and Harris & Harris, of Rome, for plaintiff in error. Wesley Shropshire, of Summerville, and Me Henry & Porter, of Rome, for defendant in error. LUKE, J. Judgment affirmed. WADE, C. J., and JENKINS, J., concur. (21 Ga. App. 593) against petitioners or either of them in said case (Court of Appeals of Georgia, Division No. 2. at the time the said judgment was entered." Jan. 21, 1918.) (Syllabus by the Court.) BAILMENT 18 (5)—REPLEVY Bond-JudG MENT. The court sustained the general demurrer and overruled the motion to vacate the judgment. Tipton and his surety sued out a writ of certiorari, the judge of the superior court overruled the certiorari, and the case came to this court upon exceptions to this ruling. It is not necessary to elaborate the ruling contained in the headnote. Judgment affirmed. BROYLES, P. J., and BLOODWORTH, J., concur. Under section 3367 of the Civil Code (1910), "in all foreclosures of liens on personalty, in which the property levied on is replevied, and in which verdicts shall be found for the plaintiff, the plaintiffs shall enter up judgments against the defendants and their securities in the same manner, and to the effect, as in cases of appeal." "In the absence of the counter affidavit, the plaintiff was authorized, under section 2817 [now section 3367] of the Civil Code, to enter up judgment on the replevy bond, against the defendant and his surety, in the same manner as in cases of appeal." Giddens v. Gaskins, 7 Ga. App. 221, 66 S. E. 560. See, also, Argo v. Fields, 112 Ga. 677, 37 S. E. 995. Under the facts of this case the court did not err in sus- (Court of Appeals of Georgia, Division No. 1. taining the demurrer to the motion to vacate the judgment, and the judge of the superior court did not err in overruling the certiorari. Error from Superior Court, Bibb County; H. A. Mathews, Judge. (21 Ga. App. 618) SOUTHERN RY. CO. v. MILLER. (No. 8853.) Jan. 22, 1918.) (Syllabus by the Court.) INSUFFICIENCY OF EVIDENCE. This case is controlled by the decision of the Supreme Court in Central of Ga. Ry. Co. Proceeding to foreclose a mechanic's lien v. James, 117 Ga. 832, 45 S. E. 223, and the by Conrad & Lee against E. W. Tipton. Judg-v. McRae & Bros., 14 Ga. App. 94, 80 S. E. decision of this court in Seaboard Air Line Ry. ment for plaintiffs by default, motion to vacate the judgment denied, writ of certiorari overruled, and defendant brings error. Af firmed. Chas. H. Garrett, of Macon, for plaintiff in error. Moore & Turpin, of Macon, for defendants in error. HARWELL, J. On October 23, 1916, Conrad & Lee foreclosed their lien as mechanics upon a certain automobile of E. W. Tipton in the municipal court of the city of Macon, and on the day following Tipton replevied the automobile by giving a bond with Spier as surety, conditioned to pay to said Conrad & Lee the amount of the judgment that might be rendered against him in said case. Tipton did not file a counter affidavit to the lien foreclosure. The case was marked in default by the judge of the trial court, at the next term, and Conrad & Lee thereupon entered up judgment against Tipton and the surety on his bond, for the amount claimed in the lien foreclosure. Tipton and his surety then inade a written motion to vacate this judgment, and a rule nisi was served upon Conrad & Lee, requiring them to show why the judg ment should not be set aside. Conrad & Lee demurred generally to the motion. The motion was on the following grounds: "(1) Because it takes a valid counter affidavit 30 convert a lien foreclosure execution into mesne process, and no counter affidavit whatever had been filed in said case when said judgment was taken. (2) That at the time said judgment was taken there was no suit in court, no issue to be tried, and no pleading which authorized any judgment against petitioners or either of them. (3) Because the court, under the circumstances hereinbefore recited, was without jurisdiction to enter any general judgment 211. The evidence did not authorize any recovery by the plaintiff, and the court erred in overruling the defendant's motion for a new trial. Error from City Court of Hall County; A. C. Wheeler, Judge. Action by W. A. Miller against the Southern Railway Company. Judgment for plaintiff, motion for new trial denied, and defendant brings error. Reversed. Edgar A. Neely, of Atlanta, J. O. Adams and Ed. Quillian, both of Gainesville, and C. R. Faulkner, of Bellton, for plaintiff in error. W. B. Sloan, of Gainesville, for defendant in error. 1. CRIMINAL LAW 552(3) -ISSUES AND PROOF. The foregoing ruling being controlling in 2. PLEADING 376-ADMISSION BY ANSWER the case, it is unnecessary to consider the amendment to the motion for a new trial. Error from Superior Court, Walton County; A. J. Cobb, Judge. Lyman Ward and others were convicted of an offense, and they bring error. Re versed. R. L. & H. C. Cox, of Monroe, for plaintiffs in error. W. O. Dean, Sol. Gen., of Monroe, for the State. BROYLES, P. J. Judgment reversed. BLOODWORTH concur. (21 Ga. App. 624) that Where the truth of an allegation of fact in a petition is expressly admitted in defendant's answer, there is no issue upon point, and it is unnecessary for plaintiff to sustain such allegation by evidence. 3. COUNTIES 213 PRESENTATION OF CLAIM. PERSONAL INJURY The filing and serving of a petition against a county within 12 months after the injury sued for was a sufficient presentation of the claim to the county officials, within Civ. Code 1910, § 411. Error from Superior Court, Elbert County; W. L. Hodges, Judge. Action by J. L. Threlkeld against Elbert and HARWELL, JJ., County. Judgment for plaintiff, and defend SWINT et al. v. BROWN, Governor. (No. 8906.) (Court of Appeals of Georgia, Division No. 1. Jan. 22, 1918.) (Syllabus by the Court.) APPEAL AND ERROR 427-BILL OF EXCEP- Service of a bill of exceptions, or a waiver thereof, being essential to give this court jurisdiction of the case, and there being no return, acknowledgment, or waiver of service indorsed upon or annexed to the bill of exceptions in this case, the writ of error must be dismissed. Civ. Code 1910, § 6160, subd. 1; Crow v. State, 111 Ga. 645; 36 S. E. 858; Seliger v. Coker, 105 Ga. 512, 31 S. E. 185; Howell v. Green, 40 ant brings error. Affirmed. Z. B. Rogers, of Elberton, for plaintiff in error. Geo. C. Grogan, of Elberton, for de fendant in error. BROYLES, P. J. Judgment affirmed. concur. On Motion for Rehearing. BROYLES, P. J. The motion for a rehearing of this case is made upon the following ground: "Because the court overlooked the following material fact: Nowhere in the record does it appear that any written claim or demand was made by the plaintiff below on the defendant within 12 months from the date of the alleged injury, nor was suit filed within said 12 months, and without proof of either of these facts the verdict is contrary to law and without evidence to support it." As to whether the suit was filed within 12 months, the petition alleges and the undisputed evidence shows that the cause of action arose in May, 1914; and the record discloses that the petition was filed on August 17, 1914, and that on the same day process was issued, and the defendant acknowledged service of the petition and process and waived all other and further service. [2] As to the other contention, that it did not appear from the evidence that any written claim or demand had been made by the plaintiff upon the defendant within 12 months from the date of the alleged injury sued for, the well-known rule is that, where the truth of an allegation of fact in a petition is expressly admitted in the defendant's answer, there is no issue upon that point, and it is entirely unnecessary for the plaintiff to sustain such allegation by evidence. Paragraph 9 of the petition is as follows: "That, within 12 months after the injury, petitioner made and presented his account for the loss of said mule and for the expenses incurred as aforesaid, to the county commissioners [of Elbert county], which account they refused to pay." Paragraph 9 of the defendant's answer, prepared by the same counsel who has filed the present motion for a rehearing, is as follows: "It [the defendant] admits that the plaintiff presented his account for damages to said mule to it within 12 months from the date of the injury and the defendant refused to pay it." In our opinion this paragraph of the answer amounted to an admission that the claim had been presented in the manner required by law. [3] Moreover, the filing and the serving of the petition, in this case, within 12 months after the occurrence of the injury sued for, was a sufficient presentation of the claim to the county officials, within the meaning of section 411 of the Civil Code of 1910. Dement v. De Kalb County, 97 Ga. 733, 25 S. E. 382; Pearson v. Newton County, 119 Ga. 863, 47 S. E. 180. See, also, to the same effect, Troup County v. Boddie, 14 Ga. App. 434, 81 S. E. 376. Motion denied. (21 Ga. App. 580) PRICE v. RIMES BROS., Inc. (No. 8863.) (Court of Appeals of Georgia, Division No. 2. Jan. 21, 1918.) (Syllabus by the Court.) 1. AMENDMENT TO MOTION FOR NEW TRIAL. The grounds of the amendment to the motion for a new trial are without merit. 2. DAMAGES 228-REDUCTION. Where in a suit on an open account the allegation in the petition and the total of the bill of particulars showed an indebtedness of $85.11, and after verdict it was discovered that the items of the account, when correctly added, made only $84.11, the judge did not err in allowing the plaintiff to write off from the verdict the amount of $1. 3. APPEAL AND ERROR 1005(2) — VERDICT APPROVED BY COURT-REVIEW. There was some evidence to support the verdict, and "whenever there is any evidence, been approved by the trial judge, this court is however slight, to support a verdict which has absolutely without authority to control the judgment of the trial court." Toole v. Jones, 19 Ga. App. 24, 90 S. E. 732; McCarty v. Keys, 19 Ga. App. 494, 91 S. E. $75. Error from City Court of Hinesville; W. C. Hodges, Judge. Action by Rimes Bros., Incorporated, against W. C. Price. Judgment for plaintiff, and defendant brings error. Affirmed. Melville Price, of Ludowici, for plaintiff in error. O. C. Darsey, of Hinesville, for defendant in error. BLOODWORTH, J. Judgment affirmed. BROYLES, P. J., and HARWELL, J., con cur. (21 Ga. App. 565) CALLAWAY et al. v. PEARSON. (No. 8729.) (Court of Appeals of Georgia, Division No. 2. Jan. 21, 1918.), (Syllabus by the Court.) 1. APPEAL AND ERROR 302(4)—MOTION FOR NEW TRIAL SUFFICIENCY CHARGE OF COURT. "A ground of a motion for a new trial containing an extract from the charge of the court but which fails to point out wherein the excerpt and alleging that the court erred in so charging, quoted is erroneous, or why it should not have been given, or why different instructions should have been given, presents nothing for the consideration of a reviewing court." Mauldin v. Gainey, 15 Ga. App. 353, 83 S. E. 276(S). 2. ADMISSION OF EVIDENCE. There was no error in admitting the testimony complained of in the third ground of the amendment to the motion for a new trial, for either of the reasons alleged; besides C. testified himself that Y. received the $250. 3. ADMISSION OF EVIDENCE. The evidence complained of in the fourth ground of the amendment to the motion for a new trial was properly admitted. 4. APPEAL AND ERROR 1005(2)—VERDICTSUFFICIENCY OF EVIDENCE. There being evidence to sustain the verdict, this court cannot disturb the finding of the jury by overruling the refusal of the trial judge to grant a new trial upon the ground that the verdict was contrary to evidence or without evidence to support it. Davis v. Kirkland, 1 Ga. App. 5, 58 S. E. 209; Stricklin v. Crawley, 1 Ga. App. 139, 58 S. E. 215; Charles v. Brooker, 1 Ga. App. 219, 58 S. E. 218; Daughtry v. Savannah Ry. Co., 1 Ga. App. 393, 58 S. E. 230; Edge v. Thomas, 9 Ga. App. 559, 71 S. E. 875; McCarty v. Keys, 19 Ga. App. 494, 91 S. E. 875. Error from Superior Court, Tattnall Coun ty; W. W. Sheppard, Judge. Action by J. A. Pearson against J. A. For other caso see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |