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Gaillard vs. Hudson.

stable in the city of Atlanta, and that Taylor had bought it from a firm of stock dealers in St. Louis, Missouri. It was further shown that the horse had been in the possession of Collier, and those under whom he claimed, for more than five years prior to the suing out of this warrant.

The code ( $4035) prescribes that, on the trial of the possessory warrant, the justice shall not investigate the title to the property, but that he shall hear evidence as to the question of possession, and shall cause the property to be delivered to the party from whose possession the same was violently or fraudulently taken or enticed away, or from whom the same absconded, or in whose peaceable and lawful possession it last was. Another section of the code ($1038) provides that where the property is not forthcoming, and the defendant can satisfactorily prove to the justice trying the case that such property has been in his quiet and peaceable possession for four years next immediately preceding the issuing of said warrant, the warrant shall be dismissed. We think that this proviso in the section last cited, as to four years' possession, extends to the preceding seo tion (34035). It is manifest from the record in this case that the defendant to the possessory warrant, and those under whom he claimed, had been in the peaceable, quiet and honest possession of this property for more than four years next immediately preceding the issuing of the warrant. They had bought the property and paid a fair price for it; and their possession could be tacked together so as to show an adverse possession to the plaintiff for four years.

We think, therefore, that the justice of the peace erred in awarding possession of the property to the party suing out the warrant, and that the judge of the superior court erred in sustaining the judgment of the magistrate.

Judgment reversed.

Camp vs. Morgan.

CAMP vs. MORGAN.

This case had been called at several terms, and had been continued to

allow the parties to arbitrate; and at the term preceding that at which the judgment was rendered, the court announced that at the next term the case would be tried when called, unless settled by the parties. At the next term, when it was called, no motion for continuance was made. Counsel for plaintiff in error stated that his client was not present, and he did not know why he was absent, but that under the rules he would have to be ready; and the case thereupon went to trial. An agreement between the parties to arbitrate the case, and that the case, when called, should be continued, which agreement was not even communicated to the court, does not furnish good reason to set aside the judgment rendered, under the above stated facts.

December 19, 1888.

Practice. Judgments. Reinstatement. Before Judge MADDOX. Polk superior court. February term, 1888.

Reported in the decision.

JANES & RICHARDSON and BLANCE & Noyes, for plaintiff in error.

A. T. WILLIAMSON and E. N. BROYLES, contra.

BLANDFORD, Justice.

The complaint here is that the court below refused the motion of the plaintiff in error to set aside the judgment rendered against him in this case and to reinstate the case. The ground of the motion was, that the parties had agreed to arbitrate the case, and that the case, when called in court, should be continued, so as to enable them to arbitrate; but that notwithstanding this, the case was called by the court and brought to trial, and a verdict rendered against the defendant, who is the plaintiff in error here. This agreement between the parties

Burley vs. The State of Georgia.

was not communicated to the court. The case had been called at several previous terms, and had on each occasion been continued to allow these parties to arbitrate; and at the term preceding that at which this judgment was rendered, the court announced that at the next term the case, when called, would be tried, unless settled by the parties, and that no further continuance by consent of the parties would be granted. When the case was finally called for trial, no motion was made for a continuance, and movant's counsel stated that his client was not present, and he did not know why he was absent, but that under the rules he would have to be ready. The case thereupon went to trial, and judgment was rendered against the plaintiff in error.

When cases are brought into court, they are not wholly at the disposal of the parties. The plaintiff, under the statute, may dismiss his case, either in vacation or in term time; and the parties may settle a case without the intervention of the court; but the proceedings of the court are under the control of the presiding judge, and the case cannot be continued without his permission. In this case, there was no motion to continue the case when called, nor was the attention of the court called to this agreement of the parties, counsel being ignorant of the same. We therefore see no abuse of his power or discretion in trying the case, or in refusing to set aside the judgment and reinstate the case.

Judgment affirmed.

BURLEY vs. THE STATE OF GEORGIA.

1. The evidence fully authorized the verdict. 2. The defendant was accused of entering a railroad car and stealing

therefrom a certain quantity of corn. There was no evidence that the car was broken open, or broken that the defendant did it;

Burley vs. The State of Georgia.

but the evidence showed that corn was stolen from the car, and that defendant was arrested in the streets with one of the stolen sacks of corn in his possession. The proof showed a misdemeanor under 24419 of the code. October 12, 1888.

Criminal law. Larceny. Misdemeanor. Before Judge Van Epps. City court of Atlanta. March term, 1888.

Reported in the decision.

F. R. WALKER, for plaintiff in error.

F. M. O'Bryan, solicitor, for the State.

SIMMONS, Justice.

1. Burley was convicted in the city court of Atlanta of the offence of larceny from a railroad car. He made a motion for a new trial, upon the ground that the verdict was contrary to law and to the evidence. He contended that, if the evidence showed that any offence was committed, the offence was a felony, and therefore the city court had no jurisdiction to try it. The motion was overruled, and the defendant excepted. The evidence fully authorized the verdict.

2. The indictment charged the defendant with entering a railroad car and stealing therefrom a certain quantity of corn. There is no evidence in the record showing when the car was broken open, or indeed that it was broken open at all, or if broken open, that the defendant did it. The evidence does show that eleven sacks of corn were stolen from the car, and that the defendant was arrested in the streets with one of the sacks. The proof brings the case under section 4419 of the code, which makes it a misdemeanor.

Judgment affirmed.

Wynn vs. The State of Georgia.

Wynn vs. The STATE OF GEORGIA.

That the drayman who hauled the stolen goods from the house in

which they were stolen participated in the larceny, may be inferred from the fact that he carried them to an acquaintance of his own and left them for temporary safe-keeping, and afterwards said they were sent there by one of the persons who assisted him in loading, which person was not known to the drayman's acquaintance who received and took charge of the goods at his request. October 17, 1888.

Criminal law. Evidence. Verdict. New trial. Before Judge VAN EPPs. City court of Atlanta. March term, 1888.

Reported in the decision.

R. J. JORDAN, for plaintiff in error.

F. M. O'Bryan, solicitor, for the State.

BLECKLEY, Chief Justice.

The evidence was not insufficient to warrant a conviction. The corpus delicti was established. That hay and oats were stolen from the house as alleged, at or after dark, and that they were carried by the accused on his dray to the store of Cater in another quarter of the city and there deposited, can admit of no question. It is certain, too, that Flemister or Nunnally, or both, participated in the larceny and shared in the criminal design. The only matter admitting of any doubt is whether Wynn, the plaintiff in error, was their victim or their accomplice. This point is sufficiently cleared up by one fact, on which the evidence is all one way, to wit, that Cater and Flemister were unknown to each other. In accounting for his conduct, Wynn said Flemister told him to carry the

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