Sims v. Shotkin , 70 Ga. App. 68 ( 1943 )

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, 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, 75 Ga. 283, the jury found for the plaintiff in trover against the defendant for the property, with three dollars per month as hire from February 14, 1883, and judgment was so rendered. It was there held that at a subsequent term the judgment could be so amended as to provide that the hire at the rate specified should continue until the delivery of the property to the officer or to the plaintiff. A verdict can not be aided by evidence outside of the record, Jones v. Whitehead, 167 Ga. 848 (5) (146 S.E. 768), and allowance of the amendment was simply an interpretation of the verdict and a statement of its legal effect. It would seem to me that the amendment was unnecessary; but if it was, in the case before us the judgment was amended, which, under the circumstances, had the same effect as an amendment of the verdict and the judgment would have had. This would seem to be true because ordinarily there is no issue before a jury, in a dispossessory proceeding, on the question of double rent after trial. Nobody knows whether there will be such a liability or not. A similar situation applies to the recovery of mesne profits after trial. One reason given why a judgment for mesne profits includes those after trial is that there can be no separate suit for mesne profits accruing after trial. Brown v.Tyson, 150 Ga. 598 (supra). It would seem that the same reasoning applies in such a case as we have here. The issue as to the tenant's illegal holding has been tried; and in case of an appeal on pauper's affidavit in lieu of a supersedeas bond, a new demand could not be made on which to base another action. There can be no separate action for double rent. The right to double rent is an incident to the dispossessory proceedings. The controlling reason which impels me, regardless of technical niceties, is that the policy of the law is that a tenant may not hold possession of rented premises, when a dispossessory warrant has been issued against him, without giving the required bond, whether the possession is held before the trial or thereafter. See Morrison v. Roberts, 195 Ga. 45 (23 S.E.2d 164), and cit. The law would be exceedingly inconsistent if it refused to allow a tenant to retain possession in the first instance without bond, and did allow him to retain possession after the case is tried and decided against him, by appealing the case and filing a pauper's affidavit in lieu of a supersedeas bond. The original bond, and the verdict and judgment, in my opinion, cover the period of time from the demand to the time the premises are surrendered, or the tenant is ousted by an officer. In Corbin v. McCrary, 23 Ga. App. 780 (supra), this court held that the lower court had no authority to enter a second judgment covering double rent from the date of the original judgment, which was for a definite sum for double rent up to the time of the trial, to the time the judgment of this court affirming the judgment of the lower court was made the judgment of the lower court. An examination of the record in that case will reveal that no evidence was submitted to the court as to when the tenant surrendered possession. The ruling might well have been based on the reasoning in Brown v. Tyson, supra, that the tenant was entitled to contest the issue as to how much rent was due since the trial. Nothing to the contrary was ruled in Crider v.Hedden, 26 Ga. App. 737 (supra). No question was there raised, or in the cases there cited, as to the question here involved, and the reference to recovery of double rent up to the time of trial was obiter. A verdict and judgment for double rent, however stated, includes double rent after the trial and until the premises are surrendered, and it is not error to make the judgment expressly so state.