Shehane v. Eberhart

158 Ga. 743 | Ga. | 1924

Eussell, C. J.

There are various assignments of error in the bill of exceptions by which the plaintiff in error, Mrs. F. S. Shehane, sought to review the verdict of the jury and the judgment against her in the superior court of Clarke County for more than $2000, which was awarded upon a plea of set-off or counterclaim interposed by the defendants in error. Mrs. Shehane, as landlord, instituted proceedings to dispossess W. S. Eberhart and Lamar Scott as tenants holding over beyond their term. The defendants answered by setting up a claim for damages alleged to have arisen and have been imposed upon their stock of goods by reason of the failure of the landlord to make necessary repairs. The judge of the superior court overruled a timely demurrer to this answer or counter-claim. The demurrer was based upon the contention that it is entirely foreign to the only issue which is pertinent in a proceeding to remove a tenant whose time has expired. We think the trial judge erred in this ruling, and that the Court of Appeals erred in sustaining and affirming it. It is true that where there is an issue raised upon proceedings to dispossess a tenant upon the ground that he has not paid his rent, the tenant may set up by way of defense either that he does not owe the landlord anything, or that he does not owe him as much as is claimed in the proceedings, or that the landlord is indebted to him for any reason in a sum larger than the amount he owes the landlord; and in such an event the tenant would be entitled to have a judgment against the landlord for the overplus. This rests upon the reason that in such circumstances the only issue in such k proceeding is the comparative state of the accounts between the two parties. The issue is whether rent claimed to be due has been paid, and the question of possession of the premises is not in issue nor involved. It cannot be disputed in such a case that the tenant would be entitled to retain his possession if he has paid the rent due; and if he shows that he has paid it or more than paid it, necessarily the case of the landlord falls to the ground. In the present case, however, the dispossessory proceedings were not based upon that ground. The only question in issue in this case was whether or not the term of the tenancy had expired. By the dispossessory proceeding the plaintiff asserted that she was entitled to the possession of the premises, and that the defendants were no longer entitled to remain in possession, because the contract had expired and the term in regard to which the parties had contracted had terminated. An amendment which sought to bring in, under these circumstances, the state of accounts between the parties was entirely foreign to the only issue before the court — the right of possession, and one of the prime tests of the pertinency of an amendment is that it must be germane to the proceeding. Should the rule be otherwise, a tenant could hold possession of the premises indefinitely by a claim that the landlord owed him money. Certainly he could hold it beyond the time for which contracts of rental are usually made, and a tenant utterly insolvent might greatly damage a landlord who by reason of the insolvency of the tenant would be without any remedy at the conclusion of the litigation.

It is unnecessary to consider the other numerous assignments of error in the bill of exceptions, because the error in the lower court rendered all the further proceedings in the trial nugatory. Had the demurrer to the defendants’ answer been sustained, as it should have been, the trial would have been properly restricted to the only issue which could be raised in the proceeding; and for that reason the alleged errors of which complaint is made in the other assignments of error (if errors they were) cannot recur upon a further trial of this case.

In view of what we have held it follows that the judgment of the Court of Appeals affirming the judgment of the lower court was error. Judgment reversed.

All the Justices concur.