Patrick v. Cobb , 122 Ga. 80 ( 1905 )

Cobb, J.

This was a proceeding, under the Civil Code, § 4813 et seq., to eject a tenant. The defendant filed a counter-affidavit, and offered an amendment alleging that the plaintiff claimed title under a sheriff’s deed purporting to sell the defendant’s property, and that the same was void, and praying for a cancellation of the deed. This amendment was disallowed, and the defendant excepted pendente lite. The jury returned a verdict in favor of the plaintiff, and the defendant assigns error upon the refusal to allow the amendment to her counter-affidavit, and upon the refusal to grant her motion for a new trial.

The issue in a proceeding of the character here involved is tenancy or no tenancy; and under our system equitable amendments may be allowed to the pleadings of either party, if such amendments set forth facts proper to he considered in the determination of this issue. But the proceeding being statutory, the defendant can not by counter-affidavit inject into the case an issue which is not germane to that involved in the proceeding. Johnson v. Stancliff, 113 Ga. 886. The cases of Ford v. Holloway, 112 Ga. 851, and Wilkins v. Gibson, 113 Ga. 31, 58, were claim cases, and the equitable amendments related to matters which were germane to the issue of subject or not subject, which is the only issue in the statutory claim proceeding. There was no error in disallowing the amendment.

The burden was upon the plaintiff to establish the existence of the ténancy. Unless this was done he was not entitled to pursue the remedy which he was seeking. Henry v. Perry, 110 Ga. 630, and cit. The only evidence offered to establish the relation of landlord and tenant between the parties was the declaration of a son of the defendant, who it is claimed was her agent, and the only evidence of his agency consisted of his own declarations. The court erred in admitting evidence of these declarations, and should have granted a new trial on this ground, as well as on the ground that the verdict was without competent evidence to support it. Judgment reversed.

All the Justices concur.