38 S.E.2d 695 | Ga. Ct. App. | 1946
1. An assignment of error on a refusal to award a nonsuit will not be considered where the case proceeded to judgment and the motion for a new trial included the ground that the judgment was contrary to and unsupported by the evidence.
2. The evidence in this case was sufficient to show that the two-months' notice required by the Code, § 61-105, to terminate the tenancy at will was given to and received by the tenant.
3. The evidence was sufficient to show a demand by the landlord and a failure or refusal by the tenant to deliver possession of the rented premises, which demand and refusal were made after the termination of *40 the tenancy at will and before the institution of the dispossessory warrant proceedings.
4. The judgment in favor of the landlord was authorized, and the court did not err in overruling the tenant's motion for a new trial.
On the trial of the case before the judge without a jury, the defendant's motion for a nonsuit was overruled, and the judge rendered a judgment in favor of the plaintiff for the premises and for double rent thereon from March 1, 1946, and directed that the plaintiff be placed in possession of the premises and that execution issue against the defendant and the surety on his bond for said sum and for costs of court. The defendant's oral motion for a new trial was overruled, and he appealed the case to the appellate division of said court, which affirmed the judgment. The exception here is to the judgment overruling the defendant's motion for nonsuit, and to the judgment overruling the motion for a new trial.
1. An assignment of error on a refusal to award a nonsuit will not be considered by this court where, after such refusal, the judge, trying the case without a jury, enters a judgment in favor of the plaintiff, and the defendant makes a motion for a new trial which includes the ground that the judgment is contrary to the evidence *41
and without evidence to support it. Schaffer v. Moore,
2. The defendant was a tenant at will of the plaintiff, and was entitled to a two-months' notice to terminate the tenancy. Code, § 61-105; Hooks v. Lease,
3. A demand upon a tenant to deliver possession to his landlord is a condition precedent to the right of the landlord to dispossess the tenant summarily under the provisions of the Code, § 61-301. Bussell v. Swift,
4. We think that the evidence was sufficient to show a two-months' notice by the landlord to his tenant to terminate the tenancy at will, followed by a demand by the landlord upon the tenant for possession of the premises, which demand was made after the termination of the tenancy at will and prior to the institution of the dispossessory-warrant proceedings. In these circumstances, the judgment in favor of the plaintiff was authorized, and the court did not err in overruling the defendant's motion for a new trial.
Judgment affirmed. Felton and Parker, JJ., concur.