70 Ga. 284 | Ga. | 1883
The defendant in error, William Markham, on January 2, 1883, as landlord, sued out a warrant to dispossess Wm. A. Huff, his tenant, of certain premises therein described, upon the ground of the failure of the tenant to pay the rent when the same became due. This warrant was met • by the bill in equity which is the subject-matter of the writ of error in this case. The bill charges that the property in question was a hotel, and had been leased for the term of five years, with the privilege of a renewal for a like term of years that, in pursuance of said lease, the occupancy of the premises by the tenant and the partner who was then with him began; that the contract of lease had been faithfully kept and performed by the lessees
To this bill the respondent filed general and special demurrers, as also his answer; by the last of which he denied all the charges as set forth in complainant’s bill against him, and prayed to be discharged, etc.
The parties supported the bill and answer by numerous affidavits, all of which are contained in the record, though
The rejection by the chancellor of the portions of the •affidavit referred to was not erroneous; indeed the rule, as laid down by this court, goes to the extent of rejecting all affidavits not filed and of which no notice has been given to the adverse party. In the case of Boyce vs. Burchard, 21 Ga., 74, where affidavits were offered by complainant, at the hearing of the motion for granting injunction, in •support of his bill, but of which he had given no notice to the opposite party, the circuit judge refused to receive them, and it was held by this court that his decision should not be disturbed. Benning, J., in delivering the opinion, ■said: “ There must be a point at which aliunde supports to bill or answer must cease to be receivable. And this court sees in this case nothing going to show that the point selected by the court below was not as good a one as any ether. Let the war of affidavits be ordered as it may, one q>arty or the other has to be deprived of the last fire.”
We hold that there was no error in the ruling of the court; and especially so as Rogers was not present, to meet any new facts stated by complainant’s affidavit.
By section 2285 of the Code, it is provided, among other thingsr, that if a tenant fail to pay his rent at any time,, the landlord may re-enter immediately and dispossess the tenant. By section 4077, it is provided that, in all cases, where a tenant shall hold possession of lands or tenements-over and beyond the term for which the same were rented or leased to him, or shall fail to pay the rent when the same shall become due, and the owner shall desire possession of the same, such owner may, by himself, his agent or attorney in fact, or attorney at law, demand the possession of the property so rented, and if the tenant refuses or omits to deliver possession when so demanded, upon oath, of the facts, the officer before whom such affidavit is made shall grant and issue a warrant, directed to the sheriff, his-deputy, or any lawful constable, commanding and requiring him to deliver to the owner or his representative full and quiet possession of the lands or tenements mentioned' in the affidavit, removing the tenant with his property away from the premises.
By section 4079, the tenant may arrest the proceedings and prevent the removal, by declaring on oath that his term has not expired, or that the rent claimed is not due, provided, such tenant shall at the same time tender
These provisions of the law give to the defendant in error a clear and indisputable right to the warrant which he sued out, with rights equally clear and indisputable in the complainant to arrest the proceedings.
But it is claimed by the learned counsel for the complainant that the act of 1866 authorizing the issuance of a warrant to dispossess a tenant for the non-payment of rent is unconstitutional, in that it contains matter in the body different from what is expressed in the title thereof. Conceding that the act originally may have been subject to this objection, it could not possibly have continued to exist after its incorporation into Irwin’s Code as a part of the statute law of the state, and when by Art. xx, par. 3, of the constitution of 1868, it was ordained and declared, that, “ All acts passed by any legislative body sitting in this state since the 19th day of January, 1861, including that body of laws known as the Code of Georgia, and the acts amendatory thereof, or passed since that time, which said Code and acts are embodied in the printed book known as Irwin’s Code, shall be next in authority in this state after the constitution of the United States and laws passed in pursuance thereof, and the constitution of the state of Georgia.”
And again, by the constitution of 1877, was this same act declared to be of force. If, therefore, it be not constitutional, none, it seems to us, could be made so.
With this complete statutory right in one to proceed and the other to arrest the warrant to dispossess, what is there charged in the bill to deprive either the landlord or the tenant of the enforcement or preservation of their respective rights ? That different legal rules may obtain elsewhere, cannot affect this case; the courts of this state are governed by the laws of the state ; and even equity, with its broad protective powers, cannot violate law; it only aids where the law is deficient; “ it is its ally, not its enemy.”
In looking at this case, and the decision of the chancellor complained of as error, it is to be borne in mind that it is alone with the refusal of an injunction with which we are dealing. The plaintiff in error claims that he has been greatly damaged by the defendant in error by his non-performance of his part of the contract of lease, and by other wrongs and injuries growing out of the acts of the said defendant, in connection therewith, and this is the response he makes to the legal proceeding sued out against him for the non-payment of rent due under the contract.
That these are independent covenants, with ample remedies at law for the protection of the rights of the parties, has been repeatedly held by this court. But it is insisted that any breach of the contract, express or implied, resulting in damages to complainant, whether liquidated or not, should be inquired into and settled in this suit, and, to that end, the proceedings at law should be enjoined until a final decree could be had upon all the matters involved; and especially where the contract requires expenditures on the one side, and allowance therefor on the other ; or where there are accounts, claims and damages claimed against the lessor in favor of the lessee, which ought to be allowed in liquidation of rent.
Had this bill been dismissed for want of equity, and that dismissal assigned as error, the question before us would have been materially changed from that which is here presented. The chancellor refused the injunction upon the ground that “ the amount of damage to the tenant by the landlord’s failure to comply with his cross-obligations under the lease were not considerable enough, as shown by the evidence, to authorize him to believe that a multiplicity of suits would probably arise by allowing the landlord to pursue his statutory remedy.”
This is the real error complained of, and in passing upon it, we do not think it either necessary or proper to decide other questions which are not legally before us at this time for adjudication.
Judgment affirmed.