Bahde v. Wright ( 1948 )

1. The Clerk of the Civil Court of Fulton County is authorized, under the provisions of the act approved August 20, 1913 (Ga. L., 1913, p. 145), to administer the oath for the issuance of a dispossessory warrant.

2. A dispossessory warrant is a summary statutory proceeding by a landlord to obtain possession of premises from his tenant, and the only money judgment which can be obtained by the landlord in such a proceeding is the statutory penalty for double rent, which is granted as an incident to the writ placing him in possession of the premises.

(a) Where the certificate of eviction issued by the Office of Price Administration authorized the landlord to proceed against the tenant for eviction in accordance with the requirements of the local law, a judgment in a dispossessory-warrant proceeding against the tenant for double rent was proper, where the verdict was for the landlord for the premises.

3. The verdict and judgment were authorized by the evidence, no error of law appears, and the Appellate Division of the Civil Court of Fulton County did not err in affirming the judgment overruling the defendant's motion for a new trial.

DECIDED JANUARY 28, 1948. REHEARING DENIED FEBRUARY 14, 1948. This was a dispossessory-warrant proceeding by L. Ralph Wright Jr., as landlord, against C. A. Bahde, as tenant. It was alleged in the affidavit on which the warrant issued: that said tenant was in possession of and was holding the described premises over and beyond the term for which the same were rented to him; that the landlord desired and had demanded possession of the premises, which had been refused by the tenant; that the landlord had complied with the rent regulations promulgated by the Office of Price Administration, in that he had given the tenant the proper notice with copy to the Rent Control Office; and that he had complied with the State law by giving the 60 days' notice to vacate. The defendant filed his counter-affidavit, denying specifically and in detail all of the plaintiff's affidavit, except that he was in possession of the property, and gave the required bond.

The case proceeded to trial and the defendant made an oral motion to dismiss the dispossessory warrant on the grounds: (a) that the affidavit and oath thereto were administered by the Clerk of the Civil Court of Fulton County, there being no provision in law whereby said clerk was authorized to administer said oath; (b) that the statute gives jurisdiction only to the judge of the superior court or a justice of the peace to administer said oath as prescribed by law. The motion was overruled, and the defendant excepted pendente lite. The jury returned a verdict for the plaintiff. The defendant made an oral motion for a new trial, which was overruled, and the case was appealed to the Appellate Division of the Civil Court of Fulton County. The judgment of the trial court was affirmed by the appellate division, and the defendant excepted to that judgment. 1. We will first consider the assignment of error contained in the exceptions pendente lite filed by the plaintiff in error. Did the trial judge err in overruling the defendant's motion to dismiss the dispossessory warrant on the ground that the oath of the affidavit had been administered by the Clerk of the Civil Court of Fulton County, where the statute requires that the oath be taken before a judge of the superior court or a justice of the peace? This question has been decided adversely to the contention of the plaintiff in error by the Supreme Court in the case of Wilson v. Healey Real Estate Improvement Co., 203 Ga. 52 (45 S.E.2d, 656), where it was held: "A deputy clerk of the Civil Court of Fulton County was authorized, under the provisions of the act approved August 20, 1913 (Ga. L. 1913, p. 145) to administer the oath and issue the dispossessory warrant." The court in that decision quoted and dealt with sections 23, 30, and 34 of the act of 1913 (Ga. L. 1913, p. 145), creating the Municipal Court of Atlanta (now the Civil Court of Fulton County), and held, as above stated, that a deputy clerk of the Civil Court of Fulton County was authorized, under the provisions of said act of 1913, to administer the oath and issue a dispossessory warrant. Accordingly, the clerk of said court was authorized to administer the oath for the issuance of the dispossessory warrant, and the trial court did not err in overruling the motion to dismiss the dispossessory warrant.

2. The plaintiff in error complains that the court erred in charging the jury that: "The law provides in these cases where the tenant holds over wrongfully after demand is made, that the landlord is entitled to double rent. The amount of rent has been stipulated by counsel, and in the event you find for the plaintiff, the court will fix the amount of rent that would be recoverable under that stipulation." No error harmful to the defendant is shown by this contention. A dispossessory warrant is a summary statutory proceeding by a landlord to obtain possession of premises from his tenant, and "the only money judgment which can be obtained by the landlord in such a proceeding is the statutory penalty of double rent, which is granted as an incident to the writ placing him in possession of the premises." HealeyReal Estate Improvement Co. v. Wilson, 74 Ga. App. 63, 66 (38 S.E.2d 747); Broadwell v. Maxwell, 35 Ga. App. 769 (4) (134 S.E. 808); Frazier v. Beasley, 59 Ga. App. 500 (1 S.E.2d, 458); Code, § 61-305.

The further contention of the plaintiff in error in this respect that the Emergency Price Control Act of 1942 is controlling, instead of the State law, can not be sustained, even if properly raised. The Office of Price Administration had issued a certificate of eviction, authorizing the landlord to proceed against the tenant for eviction in accordance with the requirements of the local law. In Cohen v. Begner, 75 Ga. App. 520 (43 S.E.2d 749), where the same contention with respect to double rent was raised as is now made in the case at bar, this court ruled that "the complaint that the judgment rendered by the court was illegal because it was for double rent is without merit." Also, see Bass v. Thigpen, 73 Ga. App. 279 (36 S.E.2d 187).

3. The verdict and judgment were authorized by the evidence; no error of law appears; and the Appellate Division of the Civil Court of Fulton County did not err in affirming the judgment overruling the defendant's motion for a new trial.

Judgment affirmed. Felton and Parker, JJ., concur.