SOUTHEASTERN REPORTER, VOL. 10. It appears that in this case the recovery for 2. The second ground was, in substance, 3. The third ground alleges, in substance, that the judgment included the amount of $41, for a wagon, harness, and shawl, although it was shown upon the trial that said articles had been sold by the sheriff, as perishable property, under the order of the court, before said verdict and judgment were rendered, and the proceeds of said sale applied in payment of the costs and expenses. The trial judge did not errin overruling this ground of the motion for a new trial. While it is true that the articles were sold by the sheriff, and the proceeds applied as alleged in the motion, the record shows that the bond given by the plaintiff in error expressly mentions these articles, and he agreed in said bond to produce them, and have them forthcoming to answer the judgment of the court, and to pay whatever sum the jury might find their value to be. If he did not claim said articles, but surrendered them to the sheriff, as he alleges, he should not have mentioned them in his bond to produce them. After giving his bond for their forthcoming, he had no right to surrender them to the sheriff; and, if he did so, it was a new conversion of said property, and he was liable for the value thereof. For this reason, the act approved October 8, 1887, (Acts 1887, p. 59,) would not apply, even though his bond had been given after the passage of that act. That act only applies in cases where neither the plaintiff nor the defendant shall replevy the property, and provides that when it is sold by the sheriff only the amount of the proceeds of the sale shall be recovered by the plaintiff. In this case, as we have seen, the defendant replevied these identical articles. (Ga. verdict and judgment in the case were ob4. The fourth ground alleges that the tained without notice to the defendant that the case was to be tried on the day it was tried; that they were not present, either personally or by counsel; that the the case was set for trial, and was unable, defendant had been crippled the day before from that day until long after the trial, to leave his room; that, on account of his suffering, he could not keep his mind on any business, and forgot about the calling of the docket, and did not know the case had been called and set for trial until after the trial was had; that he had a good and valid defense to said suit. In his affidavit attached to this ground of the motion, he sets out what his defense was. substance, that he had in good faith bought and paid for the horse sued for, at a judiIt was, in cial sale, which sale was regular, and according to law, and at which sale Taber, the plaintiff, was present, and made no objection thereto; that the sum realized at said sale exceeded the amount of the execution under which said sale was had, and the expenses of the sale, by the sum of $19.70, which sum Taber received from the sheriff, and thereby ratified the sale. He further says that he never claimed any of the other articles sued for, nor did he convert any of them to his own use; that the wagon, harness, and shawl were loaned by Taber, the plaintiff, to one Johnson, and left by him; that when the sheriff called on defendant, and demanded the property, the defendant turned over to him the wagon, as herein before recited. In order for a deharness, and shawl which the sheriff sold, fendant to set aside a verdict and judgment on the ground of his absence for providential cause, he must not only show that he was sick, and unable to attend the court, and unable to give the court notice of his condition, but he must go further, and show to the court that he had a meritorious defense to the action, and show by his affidavit, or the affidavits of others, such facts as would render it improbable, or at least doubtful, that the plaintiff would be entitled to recover. him to swear that he has a meritorious defense to the action, without going further, It is not enough for and showing the facts upon which such defense is based, so that the court can determine for itself whether, if the verdict and judgment were set aside, the result might be different on the next trial; because it would be useless to set aside a verdict, and go through another trial, to have the same verdict rendered by the jury. Beall v. Paper-Mill Co., 45 Ga. 28; Cheney v. Walton, 46 Ga. 432; Massey v. Allen, 48 Ga. 21; Peacock v. Usry, 52 Ga. 353; Lumpkin v. Respess, 68 Ga. 822; Ferrill v. Marks, 76 Ga. 21. It appears from the record that the property purchased by the defendant in the court below had been exempted from levy and sale, and set apart to the defendant, as the head of a family. Property thus set apart in Georgia is exempt from sale by any officer, unless within the exceptions provided for in the law. The plaintiff in error does not allege, or show in his affidavit, that the sale of this exempted property took place before the exemption was granted, or was within one of these exceptions. So far as appears from the record 1888, new parties were made, without the knowledge or consent of his securities; and thereby a new case was made, and one in which his securities never agreed to be bound." It is sufficient to say, in answer to this ground, that the amendment complained of was served on Phillips, the defendant, and no objection was made thereto by him. Besides, in our opinion, the plaintiff had a right, under the Code, to make this amendment. The suit was commenced by his next friend, before he became of age. While it was pending, his disability to sue was removed. He therefore had the right to have the name of his next friend stricken from the declaration, and the suit proceed in his own name. After this was done, he had a right to amend by showing the property in controversy to be homestead or exempted property; and he had a right to name the beneficiaries of such exemption, in order to enable him to recover it as homestead property. The parties to the action were not changed by these amendments. Taber was the real plaintiff at the commencement of the suit, suing by his next friend. He was still the real plaintiff when the name of his next friend was in the case, the judgment was against Ta-fourth ground thereof. That complains ber individually, and for his individual that "by reason of the amendment to the debts. If that be true, and the property declaration in said case, filed February 13th, had been set apart to him as an exemption, the sale was illegal, and, although Phillips may have bought it in good faith at a judicial sale and paid his money therefor, he got no title to the property. The plaintiff, Taber, as the head of a family, had the right to sue for and recover the same, for the use and benefit of the family. Nor does the fact that he alleges in his affidavit that Taber was present at the sale, and received the surplus from the sheriff, estop him from suing for and recovering the property, as the head of a family; it not appearing, as before remarked, that the property was sold as exempted property, under the exceptions provided for in the law. So we think that if Phillips had been present at the trial, and had testified to these facts, without more, the verdict would have been obliged to be as it was. Nor do we think, under the facts disclosed by the record of this case, that, if he had testified that he never claimed the other articles sued for, it would have authorized the jury to reduce the amount of the verdict. As before remarked, on another branch of this case, if he did not claim the articles, he should not have given bond and security for their forthcoming, as he did in this case. More-stricken, and was the real plaintiff after he over, it appears that he had retained counsel to represent him in the case. There is no showing in any of the grounds of the motion, or in the affidavits, why his counsel was not present at the trial of the case. It seems that he was present when the case was set, and that before the trial he visited the defendant in his room; and, if he did not mention the fact to his client, he ought to have done so. He was seen on the day of the trial, walking upon the streets, and it is not pretended that he was sick, or unable to attend the court. inserted the names of his wife and child as beneficiaries. It follows from these views that there was no error in the judgment of the court refusing to set aside this verdict, and the judgment is affirmed. WHITE V. CENTRAL RAILROAD. Code Ga. § 2972, relating to personal injuries due to the negligence of railroad companies, pro5. The fifth ground of the motion alleges, vides that, if plaintiff, by ordinary care, could in substance, that the counsel of the plain- have avoided the consequences to himself caused tiff in error in this proceeding is insolvent; by defendant's negligence, he is not entitled to recover. Section 3034 provides that no person shall and it was argued that if the verdict is not set aside he will have no redress, as he can- jury to himself or his property when the same is recover damages from a railroad company for innot recover damages from such counsel for done by his consent, or is caused by his own neglihis negligence. We do not think he is en- gence. In an action by a wife for the killing of titled to any relief on this ground. Phillips her husband, it appeared that deceased was walkdoubtless knew the pecuniary condition of ing on defendant's track, though there was a pubhis counsel when he employed him. Wheth-lic road along-side, upon which he could have er he did or not, it would be a new doctrine tion, being 10 or 15 minutes behind its schedule walked; that the train, going in the same directo establish in Georgia, that third parties time, was running 25 or 30 miles an hour; that the are to be deprived of their rights because engineer, who could have seen deceased some 400 the defendant, or the plaintiff, as the case yards, gave the danger signal, though it did not may be, had employed an impecunious at- appear at what time before the killing; and that torney. We shall not be the first to estab- there were two girls on the track, between delish such a rule. tween deceased and the train, who left it whenthe train was coming, but he, failing to leave the they heard the train, and hallooed to deceased that track, was run over and killed. Held, that deceased was guilty of gross negligence, though it may have been the custom for people to walk on the track, and a nonsuit was properly granted. 6. The defendants amended their motion, and claimed that the verdict was not sustained by the evidence. We do not think we can consider this ground. This was not a motion for a new trial. While there is what purports to be a brief of evidence in the record, it is not signed by all the counsel, nor approved and ordered filed by the court. We therefore decline to look into this evidence, to ascertain whether the verdict is sustained by it or not. 7. The securities on the bond also filed a motion to set aside the verdict and judgment. The grounds are in substance the same as those of the plaintiff in error's motion, which we have discussed, except the v.10s.E.no.11-18 Error from city court of Atlanta; VAN EPPS, Judge. Westmoreland, for plaintiff in error. JackBigby & Dorsey, E. H. Frazier, and T. P. son & Jackson, for defendant in error. SIMMONS, J. Rachel White sued the railroad company for damages for the homicide of her husband, James J. White, who, on October 2, 1884, while walking along its track, was killed by a passenger train. The evidence showed, in brief, that the train was 10 or 15 minutes behind its schedule time; that it had passed beyond the corporate limits of Atlanta and of West End, and was running at the rate of 25 to 30 miles an hour; that White was walking upon the railroad track, going in the same direction the train was going; that there was a public road along-side the track, on which White could have walked; that the engineer could have seen him some 400 yards; that the danger signal was given, exactly at what time before the killing does not appear; that there were two colored girls on the track also, between the engine and White, who heard the train and left the track, and hallooed at White that the train was coming; but he failed to leave the track, and was run over and killed. Under this state of facts, the trial judge granted a nonsuit in the case, to which the plaintiff excepted. Ga. 694, 3 S. E. Rep. 397, also same case, last term; Railroad v. Bloomingdale, 74 Ga. 604; Railroad Co. v. Raiford, 9S. E. Rep. 169; 2 Thomp. Trials, §§ 1803-1805. Judgment affirmed. DORSETT v. BROWN. (Supreme Court of Georgia. Nov. 4, 1889.) TAX EXECUTIons-Set-Off. In so far as unpaid tax executions belong to the tax collector after his term of office expires, they are subject to the equities existing between him and the tax-payer, resulting from the true state of their accounts with each other; and such collector, or his administrator after his death, may in a proper case be perpetually enjoined from enforcing them, neither the state nor the county being a party to the litigation, and no injunction being sought against them, or either of them. (Syllabus by the Court.) Error from superior court, Douglas county; R. H. CLARK, Judge. Thomas W. Latham, for plaintiff in error. J. S. James, for defendant in error. lector of Douglas county, issued officially, BLECKLEY, C. J. Glover, being tax colagainst Whitley, two executions for taxes, one for each of the years 1875 and 1876. After his term of office expired, Glover died. His administrator caused these executions to be levied upon the property of Whitley, who filed a bill to enjoin their collection, setting up certain matters of account be tween himself and Glover, and certain alleged stipulations on the part of Glover, as amounting to a virtual payment of the taxes for the years in question. At the trial the main question was whether these matters would bar the collection of the tax executions. The court, in charging the jury, virtually held in the affirmative; and a verdict was rendered in favor of enjointhe state nor the county was a party to ing the executions perpetually. Neither this litigation, and consequently the right to obstruct the collection of these taxes in behalf of the public was not directly in question. We think that any proceeding to collect them for the benefit of the public should not have been conducted by Glov The Code (§ 2972) declares that "if the plaintiff, by ordinary care, could have avoided the consequences to himself caused by the defendant's negligence, hè is not entitled to recover." Section 3034 declares that "no person shall recover damage from a railroad company for injury to himself or his property where the same is done by his consent, or is caused by his own negligence. It is quite apparent to us, and doubtless would have been to the jury if the case had been submitted to them, that White could have avoided this injury to himself by the exercise of ordinary care, and that it was gross negligence on his part to walk along this track as he did, giving no heed to the signals given by the train, or warning given him by the girls. Nor is this view of the law changed by the fact that it had been the custom for White and other people to walk along this track, or by the fact that the train was behind the schedule time. It does not follow from the fact that people use the track in this way, which use is known to, and thereby licensed by, the company, that the company is bound to the exercise of extraordinary care and diligence to protect persons thus using the same. If the use of the track by pedestrians, with the knowledge of the company, amounts to a license at all, it must be on the condition that persons so using the same shall exercise ordinary dili-er's administrator, but by the officers of gence themselves, so as to avoid being injured by the company's trains. In all such cases as this, if it appears from the evidence submitted by the plaintiff that the person injured did not exercise ordinary diligence to avoid the consequences of the company's negligence, and that he could have avoided it by the exercise of such diligence, the plaintiff is not entitled to recover, and a nonsuit is proper. As we said in the case of May v. Banking Co., 80 Ga. 363, 4 S. E. Rep. 330: "Any fair and reasonable construction of the evidence makes it more clear that the deceased was grossly negligent than that the defendant was negligent at all. It would be impossible for the jury rightly to infer, both that there was negligence by the defendant, and that the deceased could not have avoided the consequences thereof by the exercise of ordinary diligence; and hence any recovery by the plaintiff is not within the range of legal possibility." See Banking Co. v. Smith, 78 the county,-either the tax collector who succeeded Glover, or the sheriff. As against any right which the administrator of Glov ters of account in favor of Whitley against er had to enforce their collection, the matGlover were available. Numerous errors are complained of as having been committed by the court in the progress of the trial, but we discover none of sufficient importance to vitiate the result. We are not to be understood as approving each and every ruling of the court, but merely as holding that there was no error in refusing to grant a new trial. Judgment affirmed. MAHAFFY et al. v. HAMBRICK. 1. A report of the trial, consisting of interrogative and responsive dialogue between counsel and witnesses concerning the facts, interlarded with be reversed. remarks by court and counsel, is not a brief of evidence; and a decision holding it to be, and approving it as, a brief, will, on direct exception thereto, 2. A judgment denying a new trial will not be reversed by the supreme court as a consequence of reversing a previous decision erroneously holding that a given document filed with the motion for a new trial was a brief of the evidence. The rule in respect to incidental reversal of judgments stated. (Syllabus by the Court.) Error from superior court, De Kalb county; R. H. CLARK, Judge. Candler, Thomson & Candler, for plaintiff. Hooper Alexander and H. C. Jones, for defendants. BLECKLEY, C. J. Under the law applicable to this case as a whole, at the present stage of it, no examination of the grounds of the motion for a new trial is needful, or would be proper; for the court below should not have adjudicated upon the motion, either to grant or deny it, without having before it a proper brief of evidence. The cross-bill of exceptions presents two assignments of error, both going back behind the judgment complained of in the principal bill. These are-First, that the court erred in deciding that the report of the trial was a sufficient brief of the evidence, and thereupon approving the document as a brief; secondly, that it erred in not dismissing the motion for a new trial because there was no brief. 66 was brought in July, 1887." 'By Mr. Candler. I object to his proving damage subsequent to this. By the Court. I think he may show the effect of it." "Mr. Candler objected because there is better evidence. By the Court. I think anybody may testify as to where the land lies. Mr. Candler insisted upon his objection." "By Mr. Candler. We ask that that be excluded. He says that the notice that was given them was written. By the Court. Well, as to the giving written notice, it is excluded." "By Mr. Alexander. We offer this deed in evidence." "By Mr. Candler. We have no objection to this deed." "Mr. Alexander objected to the evidence. The witness. Colonel, I would not you don't understand me. have given that much for all of the land, in proportion. I wanted that spot there. By Mr. Candler. He has already said his land was worth as much." "By Mr. Candler. I think that is objectionable. He can state What marks are there. By the Court. If he knows the line, I think he can testify about it." "Mr. Candler objected. No objection to showing that there was a stob there, and what sort of a stob it was," etc. "Mr. Candler objected." "By the Court. Do you mean these were the marks of original surwant to know what was the common revey?" "By Mr. Alexander. Yes, sir; I port. By the Court. Well I think you can prove it." "By Mr. Candler. I don't object to his proving that there were marks on the trees, what sort they were, whether will let it in." "Mr. "Mr. "Mr. Alexander objected to the testimony because there were no pleadings to that effect. Objection overruled." "By Mr. Candler. We object to this evidence. Objection overruled." "Mr. Cand 1. Tested by several deliverances from this bench, the report of a trial, consisting blaze or chops, and what they said in the in part of dialogue between counsel and neighborhood about when they were put witnesses concerning the facts, and in part there. By the Court. I think Mr. Alexanof extraneous matter, is not a brief of the der can prove by this witness, or any other evidence. In Mayor v. Harris, 75 Ga. 768, witness, if he knows it, the original land the court, by JACKSON, C. J., said: "We are line made by the original survey of the ignorant of any law which allows such state of Georgia. He knows, or he does questions and answers to be brought here, not know, the original land line." or filed of record, on a motion for a new Candler insisted that the questions were Candler objected to the question." trial, or otherwise made record. It is a brief of the oral testimony that may be leading." "Mr. Candler renewed his objecmade record on motions for a new trial, tion. Objection overruled." "Mr. Candler and not the stenographer's report of ques-objected to the answer. By the Court. I tions and answers, and remarks of counsel and the court, on the examination of witnesses." To the same effect are Chambers v. Walker, 80 Ga. 644, 6 S. E. Rep. 165; Wiggins v. Norton, 9 S. E. Rep. 607, (last term;) and Tate v. Griffith, 9 S. E. Rep. 719,-in the last of which we said: "Of course, the testimony, pure and simple, should be admitted into the document without admixture with extraneous matter, such as remarks by court or counsel. It is not the province of the brief to report the trial, but to present a synopsis of the evidence." Let us glance, now, at the extraneous matter, or some of it,-for there is much more of a different sort,-embodied in the so-called "brief" before us. Here is a collation of it: Mr. Candler objected to proving ownership in that way. By the Court. Well, I think he can prove that he is in possession, and that he has it in his own right." "By Mr. Candler. I object to his proving that. That is not the measure of damages for the wrong they complain of here. By the Court. Well, I will let the evidence in." "By Mr. Candler. I object to that evidence. They want to know the injury done at the time this fence was removed." "By Mr. Candler. This examination ought to be put prior to the bringing of this suit. The suit ler renewed his objection to them fixing this line, after the injury of which they complain was done," etc. "Mr. Candler objected. By the Court. I think it is proper only for you to prove where this line ran as it respects the boundaries; that is, the boundary of the land at the point where the fence was. Mr. Alexander stated that he wanted to prove that these gentlemen landmark, etc. By the Court. Well, I think ran a correct line, and ran it along the old you can show that." "Mr. Alexander tendered in evidence the motion for a new trial, designating the parts he cared for. Upon the objection of Mr. Candler, the court held that only such parts could be introduced as a foundation had been laid for. Mr. Candler urged his objection to the affidavits contained in the motion. The court held that, unless there was something in it to contradict the testimony of Mr. Johnson, it was not admissible. Mr. Alexander reads the two affidavits above mentioned." In Tate v. Griffith we further said: In the oral examination of witnesses during * # almost any trial, many trivial and imma- | of any court make it one, except in name. terial questions are asked and answered, Were we to pronounce it a brief, our judgand during a lengthy trial this worthless ment would be a legal lie. Even a solemn lumber accumulates to an enormous mass. act of the general assembly could not In briefing the evidence, all such stuff change its nature by impressing it with a should be omitted." As a sample of this new appellation, any more than it could kind of matter, we now transcribe from give a family to a man by calling him the the report under examination the following head of a family. We venture the opinion questions and answers: "Question. George that every member of the legal profession, Washington, if he was living, with his lit- without exception, who suffers himself to tle hatchet could mark them, couldn't he? think candidly, knows, or is capable of Answer. Yes, sir; I suppose so." "By the knowing, that a literal stenographic reCourt. What is the name of the creek? A. port, by question and answer, covering 160 Bob O'Sheely. Q. Do you know how it is pages, and embracing every word of the spelled? A. No, sir; I don't know as I ever testimony, with no discrimination of what saw it spelled." "By the Court. Did you is material, is not a brief of evidence. No ever eat any mulberries off that tree? A. thoughtful lawyer, seriously addressing his No, sir; I never ate any mulberries off that mind to the subject, would any more contree in my life." 'By Mr. Alexander. Did found the two things than he would his that tree bear mulberries? A. I think it argument and his brief. We are not to be did. Q. Pretty fair eating? A. Pretty understood as reflecting in any degree upgood, I think. Q. What were they worth on our learned brother of the circuit bench, a quart? A. We didn't sell them by the for we well know that a recent practice, fospeck, quart, or gallon either. We just ate tered by the indolence of some counsel and all we got." This mulberry tree was killed the overwork of others, has grown up of by the plaintiff five years before the trial, substituting the stenographer's report for and three years before the trespass-the al- the brief of evidence, and he but followed this leged cause of action-was committed. practice in the present instance. His decisWe said also, in the case last cited: "In so ion was doubtless the result of bad precefar as the brief consisted of a mere copy of dents, rather than the offspring of his own the stenographic notes after being written deliberate, independent thought. Moreout in ordinary characters by the reporter, over, some of the cases which we have cited it is in no proper, legal sense a brief of the above had not been ruled when his decision oral evidence, for only an abstract or was made. Nor even in them is there any abridgment of the oral testimony can direct authoritative ruling upon the precise rightly be considered a brief of it. question now presented. Not heretofore, The substance, only, of the material testi- so far as we know, has the decision apmony should be set out in succinct narra- proving such a report as a brief of evidence tive form. Questions put to witnesses been directly excepted to. Such an excepshould be reproduced in the brief only when tion is quite distinct from a motion to disnecessary either to clearness or brevity, miss the motion for a new trial. We have and then they should be as much abbreviat- held that a motion to dismiss is not availed as practicable." Here the immaterial is able while the order approving the brief is blended with the material; every question, intact; and so we again hold. But here however verbose, is repeated at full length; the decision which resulted in the order of and the examination of witnesses sprawls approval is directly assailed; and, having over 161 pages, though the whole case in- no doubt that it was erroneous, we so provolves less than that many dollars. The nounce it. The effect of this is to render condensing powers of any ordinary lawyer, vain and valueless all the subsequent profaithfully applied to the task, would serve ceedings of the motion for a new trial. to compress all the material testimony contained in the report within a dozen or two pages. Why, then, should the time of court, and the money of suitors by increased costs, be taxed with the whole text, verbatim et literatim, of the stenographic report? Condensation is a duty no less of the bar than of the bench. Suppose the members of this court should dump into their opinions the whole contents of the records upon which they adjudicate, or the reporter of the court should state literally all the facts, whether material or not, with what profit or patience would the profession receive and use the Georgia Reports? The crude and shapeless materials which form the rudiments of a case should be worked into order, as much as possible, by the learned counsel most familiar with them; and in each stage of its progress the case should be made to throw off as much as may be of the irrelevant and immaterial baggage with which it is incumbered. Only by being freed somewhere from the impedimenta with which it set out can it reach the goal of justice. Such a document as we are reviewing is not a brief of evidence; nor can the decision 2. Nevertheless, we shall not reverse the judgment refusing a new trial, for it was right to refuse it, not for insufficiency of the grounds taken in the motion, but because these grounds were not ready for adjudication, the brief of evidence not having been duly perfected. There was material out of which to construct a brief, but it had not been constructed. The court ruled that it had been, but that was an error; and so the merits of the motion were not legally reached, nor have they yet been reached. Had a new trial been granted, that judgment would have shared the fate of the prior decision on the brief of evidence, for a dependent judgment is vacated by reversing another judgment on which it depends. Bigby v. Powell, 15 Ga. 91: Barron v. Chipman, 4 Ga. 202; Hutchinson v. Com., 4 Metc. 359; Waldron v. Ely, 2 N. J. Law. 79; Steelman v. Ackley, Id. 165; Anderson v. Radley, 3 N. J. Law, 1034. But, so far from the failure to grant a new trial being incorrect because there was no brief of evidence, the fact that there was none renders it absolutely certain that the movants were not then entitled to have a new trial granted, for without a brief of evidence |