27 S.E.2d 466 | Ga. Ct. App. | 1943
Lead Opinion
1. Under the facts of this case, where a trial judge in the civil court of Fulton County, without a jury, in passing on an issue made by a counter-affidavit by a tenant to a warrant by the landlord to dispossess the tenant on the ground that he had failed to pay the rent due and was holding over beyond his term, rendered a judgment for the plaintiff on November 2, 1942, and entered judgment in the sum of $150 as double rent for the month of October, and afterwards during the same term of the court, on November 16, 1942, when passing on the defendant's motion for new trial, overruled the motion, and at the same time, as part of the order overruling the motion for new trial, expressly amended the original judgment which had been rendered on November 2, 1942, by providing that this judgment "include future rental after October, 1942," the amendment relates to the original judgment and becomes a part thereof, and is reached by the grounds of the motion for new trial which except to the original judgment on the ground that it is without evidence to support it and is contrary to law.
2. On the hearing of a warrant to dispossess, while there can be a recovery for double rent, it can be only for rental for the period during which the premises are occupied by the tenant and only for double rent to the time of the trial. The judgment of the court, in so far as it includes "future rental after October, 1942," is without evidence to support it and is contrary to law, in that it is a judgment for future rental for a period beyond the time of trial. *69
3. The appellate division did not err in overruling the defendant's motion for new trial, and did not err in writing off from the judgment that portion providing for "future rental after October, 1942."
In the motion for new trial the defendant assigned error on the original judgment of November 2, 1942, finding for the plaintiff double rent for the month of October, 1942, on the ground that the judgment was without evidence to support it and was contrary to law. Whether the assignment of error is sufficient to reach the judgment as amended by the order of the court passed on November 16, 1942, amending the original judgment by providing that it "include future rental after October 1942," is dependent on whether the amendment of November 16, 1942, relates to and becomes a part of the judgment of November 2, 1942. By the terms of the judgment of November 16, 1942, purporting to amend the original judgment of November 2, 1942, it is expressly provided that it is an amendment to the original judgment of November 2, 1942, by enlarging this original judgment so as to make the original judgment include "future rental after October 1942." There is no exception by the defendant to the right or power of the court to amend the original judgment. The original judgment of November 2, 1942, as thus amended by the purported amendment of November 16, 1942, which increases the amount of the original judgment, is manifestly favorable to the plaintiff, and the plaintiff *71 nowhere excepts to this amendment. The plaintiff excepts to the judgment of the appellate division in so far as it operates to overrule and to strike the amendment of November 16, 1942, increasing the amount of the original judgment of November 2, 1942. This necessarily means that the plaintiff asserts and relies on the validity of the amendment of November 16, 1942, amending and increasing the amount of the judgment of November 2, 1942. The plaintiff therefore must be held to the proposition that this amendment relates to and becomes a part of the original judgment. Therefore the amendment of November 16, 1942, amending and increasing the judgment rendered for the plaintiff on November 2, 1942, as respects this case, may be considered as relating to and being a part of the original judgment. The original judgment, as thus amended, is reached by the assignment of error in the defendant's motion for new trial that it is without evidence to support it and is contrary to law.
Is the judgment of November 2, 1942, as amended by the judgment of November 16, 1942, which provides for judgment for the plaintiff for double rent for the month of October, 1942, and for future rental after October, 1942, without evidence to support it and contrary to law?
It is provided in the Code, §§ 61-303, 61-304, 61-305, that where a warrant to dispossess a tenant has been issued, he may prevent the removal of himself and his goods from the premises by filing a counter-affidavit denying the right of the plaintiff to dispossess him, and giving a bond for payment of such sum, with costs, as may be recovered against him on the trial of the case; and that if the issue be determined against him, judgment shall go against him for double rent, and the "plaintiff shall have a writ of possession, and shall be by the sheriff, deputy, or constable placed in full possession of the premises." Since, on the rendition of a judgment in a dispossessory proceeding, the tenant is to be immediately ejected and the landlord put in possession of the property, it is certainly clearly within the contemplation of the statute that the judgment for double rent be only for the period of time during which the premises were occupied by the tenant as a tenant holding over, and until the date of the judgment. This is true notwithstanding the tenant may have continued to remain in possession of the property, after having excepted to the judgment of eviction and double *72
rent. In Corbin v. McCrary,
In Brown v. Tyson,
Judgment affirmed. Sutton, J., concurs.
Dissenting Opinion
My view of the question here involved is called a dissent, for the reason that the import of the majority opinion is that a verdict and judgment for double rent up to the time of the trial cannot and does not include double rent after the time of the trial and until the premises are surrendered to the plaintiff by the defendant. The Code, § 61-303, provides that a tenant may arrest dispossessory proceedings by certain sworn declarations, provided he shall at the same time tender a bond with good security for the payment of such sum, with costs, "as may be recovered against him on the trial of the case." My interpretation of the provision quoted is that if refers to the time of the judgment, *74
and does not expressly or by implication mean that the judgment can include only the amount of double rent due at the time of the trial. A jury trying such a case obviously could not ordinarily have facts or information upon which to render a verdict for double rent subsequently to the trial. In Sanders v.Williams,