120 Ga. 666 | Ga. | 1904
McLennan brought suit against Whiddon in a justice’s court for $100, money had and received, which was deposited as a wager with Whiddon, as stakeholder, by Wright, who acted as agent for McLennan; it being contended that Whiddon paid over the money to the other party to the wager after being notified that the bet had been withdrawn and after being instructed not to pay it over. The case was by consent appealed to the superior court, and on the trial in that court the jury found for the plaintiff the amount sued for, with interest. On motion
Under this evidence, which was not disputed, we are satisfied that the verdict rendered by the jury was demanded* and that the court erred in granting a new trial. There was no appearance for the defendant in error in this court, and the record is silent as to the grounds upon which the judge of the trial court based his judgment. The only possible theory on which the court could have acted was that no demand for the payment of the money was made upon Whiddon prior to the time he paid over the money. However, no such demand was required by the law. The Civil Code, § 3721, provides that a stakeholder of money risked on a wager is bound to repay to the party depositing, at any time he may demand it before it is actually paid over to the winner; but if the money is paid over to the winner bona fide and without notice
In the present case the evidence is positive and uncontradicted that Whiddon, the stakeholder, had full notice of McLennan’s intention to withdraw the bet, prior to the time he paid it ovaer to the other party. It was also undisputed that demand was made upon him for the money, prior to the bringing of the suit. It will therefore be seen that what we now hold is in exact accordance with the decision of this court in Alford v. Burke, 21 Ga. 46, and by a majority of the court in the case of Leverett v. Stegall, 23 Ga. 259; and while in the latter case Judge McDonald dissented from the decision rendered, the dissent did not take issue with any of the views upon which this opinion is based, but was on another branch of the case. In fact, in his dissenting opinion Judge McDonald said: “If the stakeholder pays money or «lelivers property after notice not to do it, by the party making the deposit, it or its value may be recovered from him, and he can not defend on the ground that he paid it to the winner, because the court will not allow him to justify by the illegal transaction.” If there is anything in the case of Colson v. Meyers, supra, in conflict with what is now laid down, it is itself in direct conflict with the two earlier decisions referred to, and must yield to them as authority. The policy of the lawmaking power of this State has been to frown consistently on gambling transactions of whatever character. As was said by Chief Justice Lumpkin in Leverett v. Stegall, supra: “ If there be any class of gambling contracts which should .be frowned upon more than another, it is bets on elections. They strike at- the foundations of popular institutions, corrupt the ballot-box, or, what is tantamount to it, interfere with the freedom and purity of elections, and there is no security for the permanence of our government.” A careful inspection of the record in the present case can not fail to impress the reader with the apt
Judgment reversed.