Gaultney v. Adamson , 75 Ga. App. 406 ( 1947 )

Under the law as it existed at the time the judgment in the present case was rendered, a judgment in a dispossessory-warrant proceeding could include double rent on the premises involved only to the time of the judgment; and, consequently, the judge did not err in sustaining the defendant's demurrer to the motion or petition of the plaintiff to amend the judgment in the present case so as to include double rent on the premises involved from the date of the trial to the date when the defendant surrendered possession of the same to the plaintiff.

DECIDED JULY 11, 1947. Louis E. Gaultney instituted dispossessory-warrant proceedings against O. W. Adamson in the Civil Court of Fulton County. The defendant filed a counter-affidavit and bond, and the issues thus made came on for trial on August 14, 1946, when the jury returned a verdict in favor of the plaintiff for possession of the premises and found that the single rent of the premises was $75 per month. Judgment was duly entered on this verdict, directing that the plaintiff be placed in possession of the premises and that he recover $280.14 as double rent on said premises to August 13, 1946. The defendant's petition for a writ of certiorari was dismissed by the Superior Court of Fulton County and, on appeal, that judgment was affirmed by this court. Adamson v.Gaultney, 74 Ga. App. 820 (41 S.E.2d 657).

On March 14, 1947, the plaintiff filed in the Civil Court of Fulton County a petition to amend the judgment rendered in said case on August 14, 1946, so as to include therein double rent and interest thereon for said premises from August 13, 1946, until March 4, 1947, the date when the defendant surrendered possession to the plaintiff. The petition was sanctioned by the acting chief judge of said court, and the defendant was ordered to show cause why the prayers of the petition should not be granted. The defendant acknowledged service of said motion and order, and on March 26, 1947, demurred to said motion upon the ground, "That there are no facts set out in said motion authorizing the relief prayed for therein or any other relief." The judge sustained the demurrer, and the plaintiff excepted. 1. The trial judge did not err in sustaining the demurrer and in dismissing the plaintiff's motion to amend the judgment so as to include double rent on the premises involved from the date of the trial to the date when the defendant surrendered possession of the premises to the plaintiff. It is provided by the Code, §§ 61-303, 61-304, that where a warrant to dispossess a tenant has been issued, he may prevent the removal of himself and his goods from the premises by filing a counter-affidavit denying the right of the plaintiff to dispossess him and by giving a bond for the payment of such sum, with costs, as may be recovered against him on the trial of the case. Code, § 61-305, at the time of said judgment provided: "If the issue specified in the preceding section shall be determined against the tenant, judgment shall go against him for double the rent reserved or stipulated to be paid, or if he shall be a tenant at will or sufferance, for double what the rent of the premises is shown to be worth; and the movant or plaintiff shall have a writ of possession, and shall be by the sheriff, deputy, or constable placed in full possession of the premises." It was held in Sims v. Shotkin,70 Ga. App. 68, 71 (27 S.E.2d 466): "Since, on the rendition of a judgment in a dispossessory proceeding, the tenant is to be immediately ejected and the landlord put in possession of the property, it is certainly clearly within the contemplation of the statute that the judgment for double rent be only for the period of time during which the premises were occupied by the tenant as a tenant holding over and until the date of the judgment. This is true notwithstanding the tenant may have continued to remain in possession of the property, after having excepted to the judgment of eviction and double rent." Therefore, under the law as it existed at the time the judgment in the present case was obtained, the plaintiff was not entitled to a judgment for double rent for a future period of time after the date of the judgment and until the defendant surrendered possession of the property. In this connection, also see Corbin v. McCrary, 23 Ga. App. 780 (99 S.E. 472); McCrary v. Corbin, 25 Ga. App. 262 (103 S.E. 194); Crider v. Hedden, 26 Ga. App. 737 (107 S.E. 345); Allen v. Kendrick, 29 Ga. App. 241 (114 S.E. 718).

The case of Sanders v. Williams, 75 Ga. 283, cited and relied on by the plaintiff in error, is distinguishable on its facts from the present case, and the ruling therein made does not authorize or require a ruling in this case different from the one herein made. For a discussion of the ruling made in that case as applied to the issues involved in a dispossessory-warrant case, see Sims v. Shotkin, supra. It is not contended by counsel for the plaintiff in error that the act approved March 27, 1947 (Ga. L. 1947, p. 657), amending the Code, § 61-305, has any application to the issues made in the present case, as the judgment of the trial court in this case was rendered prior to the approval of that act.

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