54 S.E.2d 487 | Ga. Ct. App. | 1949
1. (a) Any defect in the naming of the defendants in error in the bill of exceptions by reference to some of them by "et al." in describing the style of the case in the trial court, and by a failure to actually name anyone as defendants in error was cured by the acknowledgment of service of the bill of exceptions by their attorney of record in the trial court, thereby binding such parties, and by the subsequent amendment to the bill of exceptions, naming these parties as defendants in error.
(b) It does not appear affirmatively and unequivocally from the other ground of the motion to dismiss the writ of error that a decision in the case is no longer required.
2. Each ground of a motion for a new trial should be completely intelligible within itself in order to present a question for consideration by this court.
3. Where all right, title, and interest of an owner of land has been divested by a sale made pursuant to a power of sale given by him in a deed to land to secure a debt, one claiming possession under him by virtue of a contract to purchase the land, who thereafter remains in possession, is a tenant at sufferance of the party or parties who purchased the land. Accordingly, the proffered testimony, offered by the defendant and excluded at the instance of the plaintiffs, which would only show the status of the defendant as a tenant at sufferance as above indicated, constituted no defense on the issue of tenancy or no tenancy, and it was not error for the trial judge to refuse to allow it.
4. Where no argument is made in respect to grounds of a motion for a new trial, these grounds will be considered abandoned.
5. The trial judge did not err in overruling the motion for a new trial.
The following appears from the evidence adduced on the trial of the case in Troup Superior Court, on November 29, 1948: Claude Daniel purchased the property involved, for himself and his three brothers, Alton, Jeff, and Allen Daniel, at a public sale at the courthouse door on February 3, 1948, and the property was conveyed to the said Daniels on the same date. This sale was under a power of sale in a loan deed on the property made by R. T. Crain, grantor, to W. Beverly Johnson Jr., grantee, on July 24, 1947. After the Daniels purchased the property, they made the O'Neal Real Estate Company and Dave Martin agents to look after it. Dave Martin went to J. H. Crain, who was living on the property, to collect the rent, and, on a refusal to pay any rent, made a demand of Crain, on April 8, 1948, for possession of the property, and Crain refused to surrender possession. Martin testified that, in his opinion as a real-estate agent, the rental value of the house and premises was $25 per month. Documentary evidence introduced includes; a security deed from R. T. Crain, grantor, to W. Beverly Johnson Jr., grantee, dated July 24, 1947, filed and recorded on July 26, 1947, Book 67, page 122, in the office of the Clerk of the Superior Court of Troup County, and a warranty deed made *649 under a power of sale by W. Beverly Johnson Jr., as attorney in fact for R. T. Crain, grantor, to Alton, Jeff, Claude, and Allen Daniel, dated February 3, 1948, recorded February 11, 1948, Book 70, page 213, in the office of the Clerk of the Superior Court of Troup County, the property conveyed by these deeds including the property described in the affidavit made for the Daniels at the commencement of the present proceeding; a security deed from R. T. Crain, grantor, to W. B. Johnson Jr., grantee, dated October 27, 1947, recorded October 30, 1947, Book 67, page 204, in the office of the Clerk of the Superior Court of Troup County, the property conveyed being described as "all that tract or parcel of land lying in being in land lot 30, 6th land district, Troup County, Georgia, and known as lots 29, 30, 31, and Tract 4 as per survey and plat made by E. B. Respass, dated November, 1945, recorded in Plat Book 2, page 143 and 144, Clerk of Superior Court's Office, Troup County, Georgia, said lots 29, 30, and 31 being improved with four-room new houses, also 2 four-room houses on Tract 4, situated on lot 100 x 175 feet, and approximately 12 lots 100 x 175 feet in Tract four (4)"; and a warranty deed from R. T. Crain, grantor, to W. B. Johnson Jr., grantee, dated November 18, 1947, and recorded in Book 68, page 245, in the office of the Clerk of the Superior Court of Troup County, the property conveyed including the property described in the affidavit made for the Daniels.
Counsel for J. H. Crain states in his brief that R. T. Crain, a brother of J. H. Crain, the defendant, and his only witness, testified that the rental value of the property was not more than $20 per month, but that this testimony was omitted from the brief of evidence, and counsel for the Daniels state in their brief that this is true.
The court directed a verdict for the plaintiffs, and judgment was rendered for possession of the property, for $309.48 principal, plus costs of court, and for $40 per month double rent from November 30, 1948, until a surrender of the premises to the plaintiffs. The defendant's motion for a new trial was overruled, and he excepted.
1. (a) The defendants in error moved to dismiss the writ of error pending in this court because no parties were named therein as defendants in error. In the bill of exceptions no parties were named as defendants in error, and the style of the case in the lower court is shown as Alton Daniel et al. v. J. H. Crain. Notice, etc., before presentation of the bill of exceptions, required by the provisions of the Code (Ann. Supp.), § 6-908.1, was waived by "Wyatt and Morgan, by Lewis R. Morgan, attorney for plaintiff," and service of the bill of exceptions was acknowledged by "Wyatt and Morgan, attorney for defendant in error," and it clearly appears from the record that Lewis R. Morgan was the attorney for all the plaintiffs in the proceeding in the trial court. Therefore, such acknowledgment of service is binding on all parties that were represented in the lower court by the attorney who acknowledged service of the bill of exceptions. Code § 6-912. Since the filing of the motion to dismiss the writ of error the plaintiff in error had amended his bill of exceptions by naming all the plaintiffs in the proceeding in the lower court as defendants in error in this court, which is permitted where an acknowledgment of service has been procured as provided in Code § 6-912, with respect to persons bound by such service. § 6-913. Any defect in the naming of the defendants in error in the bill of exceptions, by reference to some of them by "et al." in describing the style of the case in the trial court, and by a failure to actually name anyone as defendants in error, was cured by the acknowledgment of service of the bill of exceptions by their attorney of record in the trial court, thereby binding such parties, and by the subsequent amendment to the bill if exceptions, naming these parties as defendants in error. SeeHayes v. Hayes,
(b) The defendants in error also moved to dismiss the writ of error on account of the pendency of a materialman's-lien-fore- closure proceeding in the trial court, instituted by the plaintiff in error in the present case, against the predecessors in title of the defendants in error in the case at bar, in which the allegations of the petition are inconsistent with defenses in this case. The defendants in error contend that the plaintiff in error, in *651 effect, has thereby acquiesced in the rulings made in the trial court in this case, that a reversal would be ineffectual because the plaintiff in error is estopped by his admissions in judicio in the other litigation, and that the present case is now moot. It does not appear affirmatively and unequivocally from this ground of the motion that a decision in the present case is no longer required, and this ground of the motion to dismiss the writ of error is without merit. The motion to dismiss is denied.
2. In special ground 1 of the motion for a new trial, the plaintiff in error complains because the court refused to submit to the jury the question of whether a deed, recorded in Deed Book 68, page 234, was a warranty or a security deed; and from this ground of the motion it appears that the deed was a conveyance by R. T. Crain to Beverly Johnson. The contents of the deed are not shown, and it is not otherwise identified in this ground of the motion, and cannot be identified in the brief of evidence. Special ground 2 of the motion is incomplete, in that it fails to show for what amount or for whom a verdict was directed, or that the plaintiff in error was injuriously or prejudicially affected by the direction of a verdict. Special ground 4 is an assignment of error based on the exclusion of a deed from the evidence, described as "the second security deed executed by R. T. Crain to Beverly Johnson." The contends of the deed are not shown in this ground of the motion. Special ground 5 is an assignment of error based on the exclusion of testimony In this ground it does not appear what questions were asked, what answers were expected, and wherein the excluded evidence would have been of benefit to the complaining party. Each ground of a motion for a new trial should be completely intelligible within itself in order to present a question for consideration by this court, and none of the above-mentioned grounds of the motion for a new trial meet this requirement. See Trammell v. Shirley,
3. The statutory dispossessory proceeding authorized by Code §§ 61-301 et seq. cannot be maintained against a person in possession of premises unless the relation of landlord and tenant exists between the parties. McHan v. McHan,
4. Ground 6 of the motion is a general assignment of error wherein the statement is made that the court erred in directing *654 a verdict without submitting questions of facts and issues to a jury. No argument in respect to this ground or in respect to the general grounds of the motion has been made by counsel for the plaintiff in error, by brief or otherwise, and these grounds will be considered as abandoned.
5. The trial judge did not err in overruling the defendant's motion for a new trial.
Judgment affirmed. Worrill, J., concurs. Felton, J., concursin the judgment.