Harrington v. Neese , 52 Ga. App. 643 ( 1936 )

Broyles, C. J.

This was an action on a distress warrant for the rent of a store house building; and the defendant filed a counter-affidavit asking for a recoupment against the plaintiffs because of alleged damage to his goods occasioned by rain falling on them because of a leak in the roof of the building. On the trial, the evidence as to the leak and the damage to the goods was conflicting. The jury returned a verdict in favor of the plaintiffs for $618.46; the defendant’s motion for a new trial was denied, and he excepted.

Special ground 1 of the motion for new trial complains of the following excerpt from the charge: “ Of course the plaintiffs deny that they are due him anything or damaged him in any respect, but they claim he is due them the rent I mentioned to you a while ago.” It is alleged that the charge was error, “because the plaintiffs, neither in their pleadings or their evidence, denied that they were dne movant anything for injuries or damages to his goods.” On the trial of á case arising from the filing of a counter-affidavit and replevy bond to the foreclosure of a distress warrant, “the proceeding becomes a suit to recover rent, the distress warrant operating as a declaration and the counter-affidavit as a plea,” Swain v. Nasworthy, 2 Ga. App. 253 (58 S. E. 492), and cit.; and “the petition and answer, without other course of proceeding, shall be sufficient to carry the cause to the jury.” Code of 1933, § 81-311. Under the foregoing ruling it was not necessary for the plaintiffs to file pleadings denying the allegation of the counter-affidavit. And the brief of evidence discloses that the plaintiffs did deny that they owed the defendant anything for damages to his goods; nor was the charge error for any of the other reasons assigned. The other excerpt from the charge, complained of, is in the language of the Supreme Court (Hendley v. Brockman, 124 Ga. 1059 (5), 53 S. E. 672), and is not erroneous for any reason assigned.

While the evidence was in sharp conflict and would have supported a verdict for the defendant, it also authorized the verdict, returned; and, the finding of the jury having been approved by the judge and no error of law appearing, this court is without authority to interfere.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.