Wisteria Garden Restaurant, Inc. v. Tuntas Co.

Jordan, Judge.

The plaintiff corporation as the owner of a one-half undivided interest in the leased premises filed a distress warrant to recover its share of the rent due under a lease executed by the defendant corporation as lessee and the plaintiff and its cotenant as lessors. The defendant filed a counter affidavit denying the rent was due, and the case proceeded to trial before the court without a jury. The evidence adduced demanded the finding that the plaintiff’s share of the unpaid rent was $14,827.94, and judgment was entered for the plaintiff ,in that amount. The defendant has appealed to this court from that judgment, contending that it was contrary to law since the lease agreement under which the rent was claimed had been executed by the plaintiff and its cotenant as partners or joint adventurers and the plaintiff could not therefore maintain suit in its individual capacity to recover its share of the rent due. Held:

Submitted June 10, 1966 Decided June 28, 1966 Rehearing denied July 21, 1966 Edenfield, Ileyman ■& Sizemore, Joseph Lefkoff, for appellant. Wiggins & Smith, Walter A. Smith, for appellee.

The plaintiff was entitled to maintain this suit without joining its cotenant as a party under the express terms of Code § 3-111 which provides: “A tenant in common need not join his co-tenant, but may sue separately for his interest, and the judgment in such case shall affect only himself.” It is immaterial as to whether the premises were leased to the defendant lessee by the lessors separately or as a partnership since in either event the lessors would be tenants in common of the property (Baker v. Middlebrooks, 81 Ga. 491 (8 SE 320); Printwp Bros. & Co. v. Turner, 65 Ga. 71)), and thus subject to the express provisions of Code § 3-111.

Judgment affirmed.

Bell, P. J., and Eberhardt, J., concur.