54 Ga. App. 359 | Ga. Ct. App. | 1936
The plaintiff brought a former action ex delicto against the defendant corporation, “on account of nonpayment of rents under an alleged ‘conspiracy* between [it as subtenant] and the original lessee to remain in possession [of premises] without payment of rents or other compensation.** This court then held that the defendant, as subtenant in possession, was not liable to such an action ex delicto, and that “what rights and remedies the plaintiff might have ex contractu are not before the court for determination.** See Shell Petroleum Corporation
Where a motion to dismiss a writ of error, based on verified averments of fact dehors the record, is made on the ground that the questions presented have become moot, this court will not determine issues of fact which may be raised by a denial of the averments in the motion, and, after such a traverse, will not dismiss the writ of error. But if the alleged facts are admitted, or even if they are not denied, and they are sufficient as a matter of law to show that the questions in controversy have been settled, the writ of error will be dismissed. Randolph v. Brunswick & Birmingham R. Co., 120 Ga. 969 (48 S. E. 396); Tuells v. Torras, 113 Ga. 691 (39 S. E. 455), and cit. In the instant case counsel for the plaintiff did not deny, but, “for the purpose of demurrer to the motion,” expressly admitted the alleged facts, and stated their “desire that the court pass upon the merits of this motion.” This court will determine whether, as a matter of law, the exceptions have become moot.
“If a judgment is rendered in favor of the plaintiff, which she thinks too small, she may except and have the question tested,
Moreover, even if this court could treat the exceptions pendente lite as still open, since they are plainly and clearly without merit, the judgment would have to be affirmed. The count now in question, while sounding ex contractu against a subtenant, contained many of the original averments of the former petition brought ex delicto against the subtenant, which it was held could not be maintained. Shell Petroleum Corporation v. Stallings, supra. There are no allegations as to how or when, during the period from October 1932, to October 1934, for which rents were claimed, the plaintiff exercised any election to make the subtenant liable for rents, so as to hold it, rather than the original lessee, liable. Furthermore, the original lease provided that the rents should be paid to the lien creditor until the lien was discharged; and there is no averment as to such a discharge, or other allegation which would create any right in the plaintiff to recover such rents. The authorities cited for the plaintiff clearly show the absence of any cause of action in'her first-count and
Writ of error dismissed.