Stewart sold to Bennett certain property on conditions whieli involved Bennett’s payment of certain outstanding incumbrances and obligations, and Bennett went into possession of the property. While Bennett was in possession of the turpentine still and other property purchased from Stewart, Murray sold to Bennett a bill of staves to be used in making barrels in.which to ship the products of the manufactory. Later, upon Bennett’s fail.ure to meet some of the payments stipulated in the contract of purchase, Stewart again went into possession of the turpentine orchard and still, and, within a few days after he had retaken possession, Murray caused an attachment against Bennett to be levied on 39 barrels of rosin, which had been manufactured at the plant and which had been marked to the Peninsular Naval Stores Company. Stewart interposed a claim in which he asserted that the 39 barrels of rosin were his property, and the issue thus formed has been several times adjudicated since 1907, with varying results.
1. The motion to dismiss the bill of exceptions, because of failure to serve counsel for the defendant in error with a copy of the brief of counsel for the plaintiff in error within the time prescribed by rule 15 of this court, is overruled. The ruling is controlled by our holding in Seaboard Air-Line Railway v. Peeples, 9 Ga. App. 477 (71 S. E. 758), where the same point was presented. Failure to serve counsel as required by the rule empowers this court, in a proper case, to impose a penalty for contempt, but is not ground for refusing to review assignments of error properly presented in a bill of exceptions timely certified, filed, and served.
2. The first assignment of error in the petition for certiorari concerns the failure of the justice of the peace to correct and reprimand the attorney of the plaintiff in fi. fa. for certain expressions contained in his argument, and to exclude them from the jury. The complaint is also made that the magistrate failed to instruct the jury as to the issue to be passed upon by it, after the improper argument was made. The argument attributed to Bennett’s counsel and to which objection is made was that “as-the indebtedness in said attachment case against D. H. Bennett was for staves, and as the rosin levied on was encased in staves which were upon the premises when W. W. Stewart took the property back from D. H. Bennett, therefore there was a purchase-money lien against the property levied on, and, regardless of whether the property levied on was the property of D. H. Bennett or was the property of W. W. Stewart, the jury should find it subject to the attachment.” It is also stated in the petition for certiorari that after objection haijl been made to the language just quoted, counsel for the plaintiff in error stated to the court, in the presence of the jury, that the court had no right to give any instructions on the question of what was the issue in the case; that if the court attempted to intervene in the matter and instruct the jury, the instruction would invalidate the verdict, and he (counsel) would have a mistrial declared. We are not prepared to hold that the magistrate erred in refusing to order counsel to desist from his argument, or in refusing to repri
3. After a careful review of the oral testimony of the claimant, a consideration of the contract between himself and Bennett, and especially of the affidavit made by this .claimant, in which he admitted that the property was put in his possession under an agreement by which he was to receive $100 per month from Bennett during the time that Bennett might operate the still, but that Bennett could sell the property on his own account and retain all of the purchase price remaining after he had paid Stewart the' balance due the latter, the inference that there never was in fact any sale by Bennett to Stewart is authorized by the evidence in the record. This being true, the verdict is supported; and, there being no material error on the trial, the judge of the superior court was warranted in refusing to sanction the certiorari.
Judgment affirmed.