Davenport v. Whittier Mills Company , 74 Ga. App. 495 ( 1946 )

In a dispossessory-warrant case, where the defendant has filed a counter-affidavit and made the required bond, the only questions to be determined on the trial of the case in the superior court are the issues raised by the plaintiff's affidavit and the defendant's counter-affidavit; and where the counter-affidavit fails to deny any basic allegation in the plaintiff's affidavit, such allegation should be treated as admitted by the defendant.

DECIDED OCTOBER 15, 1946. REHEARING DENIED NOVEMBER 12, 1946. Whittier Mills Company (hereinafter called the company) filed an affidavit and petition for a dispossessory warrant against E. E. Davenport, who filed his counter-affidavit and bond. Upon the hearing of the case, and after the introduction of evidence, the court directed a verdict in favor of the plaintiff and entered up a judgment in accordance therewith. The defendant's motion for a new trial was denied, and that judgment is assigned as error.

The company's affidavit, signed and sworn to by its agent, alleged that: E. E. Davenport "is in possession, as tenant," of a certain described house and premises, "the property of Whittier Mills Company. That said tenant fails to pay the rent now due on said house and premises over and beyond the term for which the same were rented to him, that the said owner desires and has demanded possession of said house and premises, and the same has been refused by the said E. E. Davenport. And deponent makes this affidavit that a warrant may issue for the removal of the said tenant from said house and premises."

The counter-affidavit reads as follows: "State of Georgia, County of Fulton. Personally comes E. E. Davenport, who on oath declares with reference to the eviction affidavit of Whittier Mills Co., this day exhibited to him, that his term of rent has not expired, and that he is not holding possession over and beyond his term. [Signed] E. E. Davenport. Sworn to and subscribed before me, this the 26th day of December, 1945. Stanley S. Hudgins, J. P." It is well-settled law, by repeated decisions of the Supreme Court and this court, that in a dispossessory-warrant case, where the defendant has filed a counter-affidavit and given the required bond, the only questions to be determined on the trial of the case in the superior court are the issues raised by the plaintiff's affidavit and the counter-affidavit; and that where the counter-affidavit fails to deny any basic allegation of fact contained in the affidavit of the plaintiff, such allegation is treated as admitted by the defendant. Mitchell v. White, 74 Ga. 327 (2); Hindman v. Raper, 143 Ga. 643 (85 S.E. 843); Graf v. Shiver, 36 Ga. App. 532 (2) (137 S.E. 283); Bowling v. Hathcock, 27 Ga. App. 67 (2) (107 S.E. 384); Werner v. Foolman, 54 Ga. 128 (1); Hughes v.Purcell, 198 Ga. 666 (3) (32 S.E.2d 392). In the instant case the counter-affidavit did not deny the allegation in the company's affidavit that the relationship of landlord and tenant existed between it and Davenport; and therefore that relationship was definitely and finally established, and the contention of counsel for Davenport that such relationship did not exist is without merit. Furthermore, the existence of that relationship was shown by the undisputed evidence. The only allegations in the landlord's affidavit denied in the counter-affidavit were that the tenant's term of rent had expired and that he was holding possession over and beyond his term. And that issue was the only question before the court and jury, and the evidence in the case demanded a finding that the tenant had not paid his past-due rent and that he was holding the premises over and beyond his term. Therefore the court did not err in directing a verdict for the landlord. Moreover, there was no exception, either in the bill of exceptions or in the motion for a new trial, to the direction of the verdict, and therefore the judgment should be affirmed, even if it were only authorized, but not demanded, by the evidence.

In grounds 5 and 6 of the motion for new trial, complaint is made of the exclusion of certain proffered testimony. The testimony excluded was not germane or applicable to any issue raised by the counter-affidavit, and the court did not err in rejecting the testimony and in restricting the evidence to questions which were applicable to the issues raised by the pleadings. "Evidence ought not to be admitted unless it be applicable to some issue made in the pleadings." Bower v.Douglass, 25 Ga. 714 (2); Chattahoochee Valley Ry. Co. v.Bass, 9 Ga. App. 83 (8) (70 S.E. 683).

The remaining special ground of the motion for new trial recites: That, when the case was called for trial, counsel for the movant requested the court to have the plaintiff, a corporation, furnish him with a list of its stockholders, for the purpose of ascertaining whether or not any of the prospective jurors were related to any of such stockholders; and that the judge refused the request, but inquired of the jury if any of them were related to a stockholder of the plaintiff corporation. Such refusal by the court is assigned as error. Assuming, but not deciding, that the ruling of the court was error, it was not prejudicial error since the verdict was directed by the court.

The denial of a new trial was not error.

Judgment affirmed. All the judges concur generally, exceptMacIntyre, Gardner, and Parker, JJ., who concur specially.