invitation to others to approach and use the same. The amendment simply alleged that the invitation was broader in its scope than that alleged in the original petition. We do not think that the amendment constituted a departure from the cause of action as originally laid.

There is nothing in our present ruling to conflict with the ruling in Central Ry. Co. v. Williams, 105 Ga. 70, 31 S. E. 134. In that case the original petition alleged that the plaintiff was an employé and servant of the defendant, and that he was injured on account of a defective platform on which he was engaged in work; and the amendment sought to convert the action into one against the railroad company as the owner of the premises and as the landlord of the plaintiff's employer. Under the original petition the duty grew out of the relationship of master and servant. Under the amended petition the duty grew out of the obligation of the landlord to the tenant and the tenant's servants to keep the premises in repair. It is said, though, that in the present case the relation of landlord and tenant existed between the railroad company and the express company, and that therefore the Williams Case is, in principle, controlling, if not precisely in point. The difference between the cases is that in the present case the invitation was the same, and the duty was the same, whether the plaintiff went to the depot to transact business with the railroad company or with the express company. The liability arose out of the same state of facts-the ownership of the building and the invitation to others to visit the same. In the Williams Case, under the original petition, the liability charged grew out of one relationship, and the liability charged in the amendment grew out of an entirely separate and distinct relation. Speaking for myself, I doubt very much the soundness of the decision in the Williams Case, when it is considered in the light of the broad and salutary ruling made in the case of City of Columbus v. Anglin, 120 Ga. 785, 48 S. E. 318. For similar reasons, there is no conflict between the present ruling and the case of Heins v. S. F. & W. Ry. Co., 114 Ga. 678, 40 S. E. 710. Even if there were, that case is in conflict with the case of Central Railroad v. Whitehead, 74 Ga. 441. See the remarks of Mr. Justice Lumpkin, in Georgia Railroad Co. v. Haas, 127 Ga. 197, 56 S. E. 313. There was no error in allowing the amendment.

2. Those assignments of error in the motion for a new trial relating to the charges which were excepted to, and the requests to charge which the court refused, are disposed of by what has been said in the preceding division of this opinion. The evidence shows that the depot building contains several rooms devoted to different purposes. There was a door leading to the post office, which could be used by persons having business to transact with the postmaster, or with the express agent, or

with the railroad agent. There was also a door which led into the waiting room, and this room was connected by another door with that portion of the building in which the agent of the railroad company and the agent of the express company transacted the business of his different positions. It appears that the plaintiff entered the building by the door leading to the portion set apart for the post office, where the agent of the railroad and express companies attended to his business, and, having completed her business, she did not return in this way, but walked through the agent's office, through the door to the waiting room, and from there out of the door to the platform, where she received the injuries complained of. While it appears from the evidence that it was usual and customary for persons having business with the agent or with the postmaster to enter and depart from the building through the door the plaintiff entered, the manner in which the business was carried on in the building in the various rooms and the doors connecting the same was such that an inference could be drawn that one entering the building upon any business connected with the persons therein was at liberty to use any of the doors as means of ingress and egress. It distinctly appears that the door leading from the agent's office into the waiting room, and the door leading from the waiting room to the platform, were open, and there is nothing to indicate that it was against the rules of the company for one having business with the agent in any of his three capacities to leave the building by this route. The defendant owed to the plaintiff a duty to have its building, and the means of ingress and egress, and the platform, in a reasonably safe condition at all places that were held out by it, according to the way it conducted its business, as a place to transact business therein, or as a way to approach and depart therefrom. On every material issue the evidence authorized the finding in favor of the plaintiff. We see no sufficient reason for reversing the judgment.

Judgment affirmed. All the Justices con

cur.

MCLAUGHLIN v. MCLAUGHLIN. (Supreme Court of Georgia. July 11, 1907.) 1. INJUNCTION VERIFICATION

PETITION -DIVORCE-CROSS-PETITION-AMENDMENT. An equitable petition praying for an injunction should be verified. Civ. Code 1895, §§ 4965-4967: Boykin v. Epstein, 13 S. E. 15, 87 Ga. 25. Where a suit for divorce was filed by a husband against his wife, and she filed an answer in which she also, by way of crosspetition, prayed for alimony and injunction, this should have been verified; and in so far as it prayed for extraordinary equitable relief it was subject to be stricken for want of verification. But where the judge issued an order nisi upon it, and it was then amended, setting up additional grounds and an additional prayer for injunction, and an affidavit was attached to the amendment stating that "the facts stated

in the above and foregoing amended plea are true," there was no error in overruling a demurrer to the cross-petition as a whole for want of verification.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, § 262.]

2. DIVORCE-ALIMONY-ATTORNEY'S FEES. Under the evidence, there was no abuse of discretion in awarding temporary alimony and attorney's fees.

(Syllabus by the Court.)

Error from Superior Court, Berrien County; R. G. Mitchell, Judge.

Action by A. T. McLaughlin against N. E. McLaughlin. From a judgment awarding temporary alimony and attorney's fees, plaintiff brings error. Affirmed.

Hendrix, Smith & Christian, for plaintiff in error. Alexander & Gary, for defendant in error.

LUMPKIN, J. Judgment affirmed. All the Justices concur.

TEMPLE BAPTIST CHURCH v. GEORGIA TERMINAL CO.

(Supreme Court of Georgia. July 11, 1907.) 1. WRIT OF ERROR - HEARING-TIME FOR-CONSTITUTIONAL PROVISIONS.

The Constitution imperatively requires that all cases brought to the Supreme Court shall be heard at the first term, unless continued for providential cause, and that all cases shall be decided at a time not later than the end of the term following that at which they are heard. In order to comply with this constitutional requirement according to its true intent and spirit, it is necessary that the docket of each term should be made up in such manner as to fix with definiteness, as nearly as may be, the volume of the business for the term.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3199.]

2. SAME.

In the absence of a constitutional provision or a valid statute regulating the method of docketing cases, the term at which they shall be heard is to be determined by the Supreme Court, keeping in view the constitutional requirement referred to in the preceding note. 3. SAME.

The Supreme Court, from its very origin, has exercised the power to close the docket of the term at some time during the term and before final adjournment, so far as relates to the entering of cases thereon. 4. SAME.

The statutes regulating the practice in the Supreme Court, when construed in pari materia and in the light of the history of the practice of closing the docket, contain nothing which, properly construed, denies this power, but, on the contrary, impliedly recognize the existence of the same.

5. SAME.

The bill of exceptions and record in the present case having been filed in the office of the clerk of the Supreme Court after the date that the docket of the term had been closed by order of the court, the case must be placed on the do ket of the next term.

(Syllabus by the Court.)

Action by the Temple Baptist Church against the Georgia Terminal Company for an injunction and other relief. Judgment for

defendant, and plaintiff brings error. Motion by plaintiff in error to docket the cause at the then term. Motion overruled.

The Temple Baptist Church filed a petition in equity against the Georgia Terminal Company, praying for an injunction and other relief. After the hearing the judge refused to grant the injunction, and the plaintiff excepted. The record and the bill of exceptions were filed in the office of the clerk of the Supreme Court on July 6, 1907. The Supreme Court had, on June 12, 1907, passed the following order: "It is ordered that the civil docket for the present term be this day closed, and that the criminal docket for said term be closed on Monday, July 1, 1907." On the same date that the record and the bill of exceptions above referred to were filed in the office of the clerk of the Supreme Court, the plaintiff filed a motion in which it was asked that the case be entered upon the docket of the present term for a hearing. The grounds of this motion were as follows: "The act of 1870, now incorporated in Civ. Code 1895, § 5558, provides that on the receipt of any fast writ by the clerk he shall place it immediately upon the docket of the circuit to which it belongs, and at the request of either party the court shall hear the case without delay and without respect to the order of the circuits; the spirit and purpose of the act being to insure a speedy hearing of such writ. It is contended that the court has no authority to pass an order to prevent or restrict the hearing of such writs; but, on the contrary, it is made the duty of the court to provide for a hearing without delay. The only power given to the court by statute in regard to the making of rules is the authority to make the hearing more speedy and systematic than the statute provides. The statute enlarges the power of the court for this purpose, but it does not authorize the court to restrict or limit such hearings. It is contemplated by the act that, so long as the court is in session, it shall hear such writs and continue to hear the same until adjournment. The present term of the court will continue for a sufficient time to hear and determine the case, and the parties thereto are willing to make all waivers necessary to secure a hearing. The case involves a vast outlay of money in a public improvement incident to the exercise of the right of eminent domain, affecting the rights of the public at large, as well as the rights of private parties, to a public street in the city of Atlanta. The nature of the case is such that it should be heard at once. The petition was filed to enjoin the closing of a public street by the defendant under an illegal order of the authorities of the city of Atlanta. At the hearing on June 8, 1907, the judge held that the plaintiff was estopped, and for this reason refused the injunction. This was four days before the passage of the order by the court closing the docket for entering fast writs of

error for the present term. When the judgment refusing the injunction was rendered, the plaintiff gave notice of its intention to apply for a writ of error; and an order was granted by the judge, superseding this judgment, to allow the filing of the bill of exceptions. When the bill of exceptions was filed the judge granted an additional supersedeas, suspending the judgment until August 6, 1907. This was done to allow a hearing of the case at the present term. The whole proceeding is in the utmost good faith, and it is the desire of the plaintiff to have its rights determined at once. If the case is not heard at the present term, the defendant will, as soon as the supersedeas has lapsed, proceed to excavate the street; and before a hearing of the case at the next term the excavatiou will be accomplished and a reversal of the judgment will be of no advantage, and it will be impossible to restore the street. The damage cannot be estimated in money, and the only protection that can benefit the plaintiff is to stop the excavation, and, under the present conditions, this can only be done by a hearing at the present term." The petition was signed by counsel and verified by affidavit.

Berner, Smith & Hastings, for movant.

COBB, P. J. (after stating the facts). The act establishing the Supreme Court of Georgia divided the state into five supreme judicial districts, and a term of court was held twice in each year in every district. The court sat at two places in each district, except the fifth, where all of its sessions were held at the seat of the government in the city of Milledgeville. In order to carry a case to the Supreme Court it was necessary for the losing party to tender the bill of exceptions to the judge within four days after the trial. When the bill of exceptions was tendered, if true, the judge was required to certify the same. Within 10 days thereafter notice was required to be served upon the opposite party or his counsel, and when such bill of exceptions and evidence of service was filed in the office of the clerk of the trial court it was the duty of that officer to certify and send up to the Supreme Court a complete transcript of the entire record in the case within 10 days after he received the original notice with a return of service thereon. Cobb's Dig. p. 451, §§ 8, 9 (1 Ga. viii, ix). Provision was made by the rules of the court for writs of error, citation, assignments of error on the bill of exceptions, etc. Rule 19 et seq., 1 Ga. xiv et seq. The rules of court provided: "All cases returned to this court shall be entered on the bench docket and numbered, on or be fore the court meets on the first day of the term to which they are respectively returned, and the cases first received by the clerk shall be first entered." Rule 7, 1 Ga. xii. It will be noted that it was by a rule of the court, and not by a statute, that the Supreme Court first determined when the docket should be

closed for the entry of cases for the term. The docket was closed on the first day of the term, and records and bills of exceptions thereafter received were docketed to the next term of the court. In 1855 an at was ¡assed requiring the clerk of the Supreme Court to arrange the cases on the docket by circuits, and to give notice, by publication in a newspaper at the place where the court was to be held, of the order in which the circuits were arranged; it being also in this act provided that, if a case reached the office of the clerk in time to be entered upon the docket before all the cases from that circuit were heard, the same should be construed as being docketed in time for that term, and that error might be assigned and issue joined at any time before such case was called. Acts 1855-56, p. 198. The several separate judicial districts of the state were abolished by the Constitution of 1865, and the entire state was, in effect, declared to be one supreme judicial district, and the court was required to sit at the seat of the government at such time in each year as the General Assembly should prescribe. Code 1868, § 4961. In pursuance of this change made by the Constitution in the act organizing the Supreme Court, the General Assembly, in 1866, passed an act providing that the sessions of the Su-⚫ preme Court should be held at Milledgeville on the first Mondays of June and December in each and every year, and that such sessions should be continued until the business before the court should be disposed of. It also provided that all bills of exceptions should be filed in the office of the clerk of the Supreme Court at least 20 days before the commencement of the term at which the same was to be heard, and bills of exceptions filed within less than 10 days should be docketed for the next succeeding term. Acts 1866, p. 46.

The practice prescribed by this act, of making the case returnable to the term which began not less than 20 days from the time that the record or bill of exceptions was filed in the office of the clerk of the Supreme Court, continued until 1890, when the decision in the case of Logan v. W. & A. R. Co., 86 Ga. 493, 12 S. E. 586, was rendered. In that case Mr. Chief Justice Bleckley, after reviewing the various statutes in reference to bringing cases to the Supreme Court, laid down the rule that the return term fixed by law for all ordinary bills of exceptions is the first term which begins after the expiration of 30 days from the filing of such bills of exceptions in the office of the clerk of the trial court. Under this rule the term to which a case was returnable was not fixed by the date on which the record and bill of exceptions reached the office of the clerk of the Supreme Court, but by the date on which the bill of exceptions was filed in the office of the clerk of the trial court. This was a decision by a unanimous court, and was followed in the case of Bank of Culloden v. Bank of Forsyth, 119 Ga. 351, 46 S. E. 424, which

was also by a unanimous court. By an act approved October 28, 1870, it was provided that if a case had been transmitted in time to reach the clerk of the Supreme Court 20 days before the first day of the term, and should fail to so reach the clerk, either party, on the first day of the term, if the record had then arrived, might move the court to bave it entered and heard in its order at that term, and if the court was satisfied that it was so transmitted in time, and if not so transmitted that it was by reason of some act of the defendant in error to produce delay, the motion should be granted. Acts 1870, p. 46. On October 28, 1870, the very same day that the act last referred to was approved, another act was approved which provided that bills of exceptions in cases of applications for injunction should be tendered and signed within 10 days from the date of the decision, and the opposite party be served within 5 days, and the clerk of the trial court, within 5 days from the date of service, was required to make a transcript of the record and transmit the same immediately to the Supreme Court then in session, and, if not in session, then to the very next session; and its arrival by the first day of the term, or at any time thereafter during the term, 'was declared to be sufficient to insure a hearing. If the record being returned to the court then in session shall fail, after due diligence, to arrive in time for hearing before adjournment, then it should stand over until the next term. The clerk of the Supreme Court was required, immediately upon receipt of such cases, to place the same upon the docket of the circuit to which it belonged; but, at the request of either party, the Supreme Court was required to hear the case without delay and without respect to the order of circuits, or their order in the circuits, unless some rule for a more speedy and systematic hearing of such cases was adopted in compliance with the spirit of the act, giving them precedence. Acts 1870, p. 405; Civ. Code 1895, § 5558.

This court had held that neither the granting of an ex parte application for an injunc tion at chambers, nor the dissolution of an injunction so granted, were such judgments, decisions, or decrees of the judge, heard at chambers, as to authorize a writ of error to this court while the case was pending in the trial court. Johnson v. Stewart, 40 Ga. 167; Nacoochee Mining Co. v. Davis, 40 Ga. 309. These decisions were rendered in 1869, and the act of 1870 was evidently passed by the General Assembly to remedy the defect then existing in the law with reference to the hearing of such applications by the Supreme Court. The effect of this act was, so far as applications for injunction were concerned, to allow a party to the case in the trial court to bring under review by the Supreme Court a mere interlocutory decision of the judge. This was not permissible under the original act establishing the Supreme Court, which

founded the jurisdiction of the Supreme Court upon the fact that the case had been finally disposed of in the trial court. This act brings into the practice what is now commonly known as the "fast writ of error," originally applicable only in cases of applications for injunction, but subsequently extended to a large class of cases. See Civ. Code 1895, § 5540; Gordon v. Gordon, 109 Ga. 262, 34 S. E. 324. In 1877 an act was passed providing that no case should be dismissed by the Supreme Court, or the hearing thereof postponed, by reason of the failure of the clerk of the trial court to transmit the record and the bill of exceptions to the clerk of the Supreme Court, provided the bill of exceptions and record reached the office of the clerk of the Supreme Court before arguments on the circuit to which it belonged had been concluded; and when a case so reached the office of the clerk it was his duty to enter it on the docket of cases for the circuit, and the case was then to be heard at the term to which it should have been returned "after all of the cases on the entire docket for that term had been heard." This act provides, also, that, if the bill of exceptions and record do not reach the office of the clerk of the Supreme Court until after the arguments on the circuit have been concluded, it shall be docketed to the next term, and then heard with the cases from the circuit. Acts 1877. p. 99; Civ. Code 1895, § 5571. The latter part of this act, providing for the docketing of delayed cases reaching the court after the circuit to which they belonged had been passed, was declared unconstitutional, for the reason that the case was returnable to the preceding term, and, under the Constitution, the General Assembly had no authority to make it returnable to the next term. Davis v. Bennett, 72 Ga. 762.

In 1880 an act was passed which provided that no writ of error should be dismissed on any ground which could be removed during the term to which the writ was returnable, and making it the duty of the Supreme Court "to give such time during said term, even to the end of the same, as may be necessary to remove said ground if it can be removed dur ing said term." Acts 1880-81, p. 123. In the case of Davis v. Bennett, supra, the case was called for argument on April 25, 1884. That was the last day for argument during the term. The case was transmitted too late for a hearing on the circuit to which it belonged. A diminution of the record was suggested, and a motion to dismiss was made. The record was defective, and time was asked, under the act above referred to, to complete the record. In the opinion delivered on the day following the court says: "By the act of 1880-Code 1895, § 4272 (c)-no writ of error can be dismissed on any ground which can be removed during the term to which it is returnable, even to the end of it. This cannot be removed. The end of the term is here

to-day." The writ of error was dismissed on that day, notwithstanding the court, according to the minutes, continued in session until June 10th, consulting and deciding cases which had been argued prior to April 25th. This was a distinct ruling by the court to the effect that the words "end of the term," in the act of 1880, were to be properly construed, as to remedying defects in the record, as being the last day on which argument was to be heard during that term. The court must have necessarily drawn a distinction between the "end of the term," within the meaning of the act providing for remedying defects in the record, and the "final adjournment of the term," which would follow thereafter at such time as the court, in its discretion, should fix.

It appears from the foregoing history of the practice in this court that at its origin it fixed by rule the time that the docket should be made up and closed for the term. The General Assembly thereafter saw fit to regulate the matter by providing that certain cases should be treated as of the term, although not within the operation of this rule; that is, cases arriving after the first day of the term, but before arguments on the circuit to which they belonged had been finished.

The General Assembly recognized, even by the passage of this act, that there must be some way to fix the business of the term and ascertain the time when the docketing of cases should stop. The original rule provided that docketing of cases should stop on the first day of the term. The General Assembly, recognizing that there must be some rule in reference to this matter, simply provided that cases reaching the court during the term might be added to the docket of that term, provided arguments on the cir cuit had not been concluded when the bill of exceptions and record were filed in the clerk's office. The act of 1870, in reference to applications for injunction, brought into existence a class of cases before unknown to the practice of the court; that is, bills of exceptions and records that were being filed from time to time during the term, subject to be disposed of at the term when filed. The whole policy of the act was to provide speedy hearings for these cases; but there was nothing in the act, construing the language in the light of the past history of the court, which undertook to take away from the court the right to fix a docket of cases for the term and to provide when such docket should be no longer open for the entry of cases. So long as the docket was open for the entry of cases, cases within the operation of the act of 1870 were to be expedited; but there is nothing to indicate that it was the purpose of the General Assembly to deprive the court of the power to fix a time for closing the docket of the term, or to require the court to hold the docket open until the very day of final adjournment, in order

The

to speed any case or class of cases. court, as it was constituted at the time of the passage of this act, construed the act as having no effect whatever upon the power of the court to fix the time for closing the docket of the term, and the practice originated at that time, when Mr. Chief Justice Warner was the presiding officer of the court, to close the docket for the entry of cases when the last case, in its regular order, was called. From that time no other cases were entered on the docket, and the court then proceeded to hear and determine those cases which had been passed to the heel of the entire docket.

The formal manner in which the able and venerable Chief Justice actually closed the book and gave instructions to the clerk to make no further entry of cases thereon during the term, is in the recollection of some of those still connected with the court in different capacities. In his formal and solemn way he would close the lids of the book, lay his hand upon the same, remark to the clerk that the docket of the term is now closed, and then, with equal formality and solemnity, he would reopen the book and proceed to call the cases which had been passed to the heel of the entire docket. This was the construction of the law by the court as it was then constituted, and of the meaning to be given to the act of 1870 in this particular. And this court, though it has changed often in personnel, followed the practice thus instituted without variation until 1891, when the act providing for the speedy hearing of criminal cases became the law. Acts 189091. p. 108. During this period Mr. Chief Justice Jackson and Mr. Chief Justice Bleckley were the presiding officers of the court, and the court, though differently constituted as to associate justices, followed without hesitation and without doubt the practice instituted almost simultaneously with the passage of the act of 1870. After criminal cases were put in the class of fast writs of error, the court, on January 18, 1892. passed a rule providing for the speedy hearing of such cases, and in the rule recognized that the court had authority to close the docket as to the entry of such cases, and provided for the disposition of cases which reached the court during the term but too late to be docketed for the term then in session. On January 21, 1895, this rule was amended, and the right to close the docket was again distinctly recognized by the court. On February 15, 1898, there appears upon the minutes an order directing the docket closed after a given date, so far as the entry of criminal cases was concerned. While this is the first formal order appearing on the minutes, an examination into the manner in which the court dealt with criminal cases from the date of the passage of the act of 1891 evidences the fact that oral orders must have been made in reference to the disposition of such cases; for it distinctly appears that records in such