Bonds v. Brown

• Decision Date: 17 November 1909
• Citation: 66 S.E. 156,133 Ga. 451
• Parties: BONDS v. BROWN et al.
• Court: Georgia Supreme Court

66 S.E. 156

133 Ga. 451

BONDS v. BROWN et al.

Supreme Court of Georgia

November 17, 1909

Syllabus by the Court.

Where a question comes collaterally before a court, and a judgment is rendered in the case, and it does not appear, except by inference from the judgment and the pleadings, that the question collaterally made was actually passed upon, the judgment will not be conclusive on the trial of another case between the same parties involving the same question.

Jurors in passing upon the testimony of a witness who is called to give his opinion as to the value of certain land for rent are not absolutely bound by such opinion, but may exercise their own judgment on the subject, taking into consideration the nature and character of the property, and the purpose for which it was rented, and all other facts which legitimately appear tending to show the value of the property for rent during the time for which rent is claimed. On the trial of a case, where one of the material issues involved is value of certain land for rent, and a witness is introduced who gives his opinion as to the value of the land for rent, it is erroneous for the judge to direct a verdict.

Error from Superior Court, Baker County; W. N. Spence, Judge.

Action by Lou Bonds against Mrs. C. G. Brown and others. Judgment for defendants, and plaintiff brings error. Reversed.

A. S Johnson and Benton Odom, for plaintiff in error.

Pottle & Glessner and Pope & Bennet, for defendants in error.

ATKINSON J.

It will be unnecessary to consider any question except that which relates to the conclusiveness of the judgment in the justice's court. If it was conclusive, that would end the case. If not, the court on another trial will try the case on the other questions involved, and all proper evidence will probably be admitted. What has been stated as to a future trial of the case may be qualified, however, by what is stated in the second division of the opinion. It is provided in Civ. Code 1895, § 4819, that: "The party distrained may in all cases replevy the property so distrained by making oath that the sum, or some part thereof, distrained for is not due; *** and in such case the levying officer shall return the same to the court having cognizance thereof, which shall be tried by a jury as is provided for in the trial of claims." In this case Lou Bonds undertook to resist a distress warrant sued out against her for the amount in dispute, by filing an affidavit reciting, among other things "that the sum distrained for is not due, nor is she indebted to plaintiff in any sum whatever for rent. The defendant (Lou Bonds) further says that the said Mrs. C. G. Brown, who claims this rent to be due her, only holds a deed from her (Lou Bonds) the intention of which was made to secure a debt, and not to prove title, and that she (Lou Bonds) had never yielded possession or promised in any manner to pay rent for her own property. Deponent may further add that she stands ready and willing to pay Mrs. Brown all legal demands that she holds against her."

In the summary proceeding before the justice of the peace it was not necessary to have decided in favor of Mrs. Brown, for the justice of the peace to have found that the deed executed by Lou Bonds was or was not merely a deed to secure a debt. The deed may have been of that character, and still the relation of landlord and tenant may have existed between them; and if that relation existed, and there was rent due to Mrs. Brown, she would have been entitled to recover it. The distress warrant proceeding was a statutory remedy, under which nothing could have been recovered except rent; and no rent could have been recovered, unless the relation of landlord and tenant existed. It was not necessary, therefore, to establish Lou Bonds' real interest in the land; but it would have been sufficient to defeat Mrs. Brown's claim for rent, if the evidence failed to show that the relation of landlord and tenant existed between them. While the affidavit is a part of the pleadings, and is to be construed most strongly against the pleader, we think, considered in its entirety, the reference made in the affidavit to the character of the deed...