Arnold v. Selman
| Decision Date | 09 January 1951 |
| Docket Number | No. 1,No. 33303,33303,1 |
| Citation | 83 Ga.App. 145,62 S.E.2d 915 |
| Parties | ARNOLD et al. v. SELMAN |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The motion to dismiss the bill of exceptions on the ground that no motion for a new trial was filed is without merit. A direct bill of exceptions will lie to the direction of a verdict.
2. The assignment of error to the direction of a verdict in the bill of exceptions in this case is a sufficient assignment of error to raise the question as to whether the evidence demanded the verdict directed.
3. (a) A valid lease for the building in question existed between the plaintiff, Selman, and the defendant, Arnold, at the time this proceeding was instituted.
(b) Under the evidence, the jury would have been authorized to find that the rent was not due at the time the dispossessory warrant was sued out, and (c) that no demand for possession of the premises had been made on Arnold prior to suing out this proceeding.
(d) The evidence failed to show that the relation of landlord and tenant existed between Selman and the defendant, Taylor.
4. Accordingly, under the evidence and the law applicable thereto, the trial judge erred in directing a verdict in favor of the plaintiff against the defendants.
Brison & Davis, and Earl B. Self, Summerville, for plaintiffs in error.
Maddox & Maddox, Rome, for defendant in error.
O. A. Selman sued out this dispossessory warrant proceeding against I. O. Arnold and Zen Taylor on June 8, 1950, and sought to have the defendants removed from a certain described building in Summerville, Georgia, occupied as a cafe. The plaintiff alleged in his affidavit that the defendants were in possession of the described premises as tenants at will; that they failed to pay the rent then due; that he had demanded possession of the building and premises, and the same had been refused by the defendants.
Arnold filed a counter-affidavit in which he alleged that his term of rent for the premises had not expired; that he was not holding possession over and beyond his term; that the rent claimed was not due; and he denied that any demand for possession of the premises had been made upon him.
Taylor in a counter-affidavit denied that he held the premises in question by lease, or at will, or at sufferance, or otherwise from O. A. Selman or any one claiming under him and also denied that Selman had made demand upon him for the premises.
The case proceeded to trial before a jury in the City Court of Chattooga County, both sides introduced evidence, and at the conclusion of the evidence each defendant made a motion for a nonsuit which was denied. The trial judge then directed a verdict for the plaintiff against both defendants for possession and for double rent. Exceptions pendente lite were filed to the order overruling the motion to grant a nonsuit. The defendants excepted by a direct bill of exceptions to the refusal to grant a nonsuit, and to the direction of a verdict against them.
1. The defendant-in-error's motion to dismiss the bill of exceptions, on the ground that no motion for new trial was filed, is without merit. A direct bill of exceptions will lie to the direction of a verdict. Webb v. Hicks, 117 Ga. 335(5), 43 S.E. 738; Scarborough v. Holder, 127 Ga. 256(1), 56 S.E. 293; Atlantic Banking & Savings Co. v. Chastain, 150 Ga. 640(1), 104 S.E. 628; Walker County Fertilizer Co. v. Napier, 184 Ga. 861(1), 193 S.E. 770; Meeks v. Meeks, 5 Ga.App. 394(1), 63 S.E. 270.
2. The following assignment of error to the direction of a verdict in this case: 'To this directing a verdict by the Court in favor of the defendant in error against the plaintiffs in error, the plaintiffs in error excepted, now except, and assign the same as error upon the ground that said directing a verdict was contrary to law,' is a sufficient assignment of error to raise the question as to whether the evidence demanded the verdict directed. See Mullis v. McCook, 185 Ga. 171(1), 194 S.E. 171, and cases cited therein.
3. It appears from the evidence that, on February 1, 1947, O. A. Selman leased the building in question to Otis Mathis for a period of ten years, commencing on February 1, 1947, and ending on January 31, 1957, at a monthly rental of $85 payable on the first day of each month. The lease contract contained the following stipulations: 'It is further agreed by the lessee that upon his failure to pay the rent when due, the lessor has the right and option to declare this lease void and cancel same and repossess said property.
'The lessee agrees to pay all light, water and gas bills in connection with said building, promptly when due.
'It is further agreed by the lessee that he will not sub-let the premises or any part thereof without the consent of said lessor * * *.
This lease contract was transferred by Otis Mathis to I. O. Arnold on October 31, 1947, with the consent and approval of O. A. Selman.
O. A. Selman testified, in part, to the effect that he had never consented for Arnold to sublet the described building to any one; that after going into possession, Arnold paid the first few items of plumbing expenses; that later Selman had a sewer line put in from the building at a cost of $300 and that he also paid $28 for having the water meter fixed; that the toilets and drains became stopped up and he had to have the sewer line put in on that account; that Selman had requested Arnold to have the sewer line fixed, but that he had refused to do so; that Selman called on Arnold to pay the expenses thus incurred, but that Arnold refused to do so; that in April, 1950, Arnold's place of business was sold before the courthouse door (that is, the fixtures and equipment of the cafe located in the leased building); that Selman had not accepted any rent from any one for the building since the March, 1950, rent; that after the restaurant equipment was sold, Taylor said he owned it, and that Arnold was running the place for him; that after the sale of the fixtures Selman told Zen Taylor, who bought the fixtures, that if he did not pay the rent and...
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...the landlord was not paid any rent during the entire months of April 1990, and May 1990. Appellants' reliance on Arnold v. Selman, 83 Ga.App. 145, 149(3), 62 S.E.2d 915 is misplaced. Assuming arguendo the record supports a finding of an initial waiver of right to require rent payment on the......
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...not on solid ground when the sworn application was filed. "Tender of payment is equivalent to payment. [Cit.]." Arnold v. Selman, 83 Ga.App. 145, 149, 62 S.E.2d 915 (1951). See also 49 Am.Jur.2d "Landlord and Tenant" § 754, second paragraph. 2 Consequently, a directed verdict as to it was T......
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