Crain v. Daniel
| Citation | 79 Ga.App. 647,54 S.E.2d 487 |
| Decision Date | 22 June 1949 |
| Docket Number | No. 32396.,32396. |
| Parties | CRAIN. v. DANIEL et al. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 15, 1949.
Syllabus by the Court.
1.(a) Any defect in the naming of the defendants in error in the bill of exceptions, by reference to some of them by "et al." in describing the style of the case in the trial court, and by a failure to actually name anyone as defendants in error, was cured by the acknowledgment of service of the bill of exceptions by their attorney of record in the trial court, thereby binding such parties, and by the subsequent amendment to the bill of exceptions, naming these parties as defendants in error.
(b) It does not appear affirmatively and unequivocally from the other ground of the motion to dismiss the writ of error that a decision in the case is no longer required.
2. Each ground of a motion for a new trial should be completely intelligible within itself in order to present a queston for consideration by this court.
3. Where all right, title, and interest of an owner of land has been divested by a sale made pursuant to a power of sale given by him in a deed to land to secure a debt, one claiming possession under him by virtue of a contract to purchase the land, who thereafter remains in possession, is a tenant at sufferance of the party or parties who purchased the land. Accordingly, the proffered testimony, offered by the defendant and excluded at the instance of the plaintiffs, which would only show the status of the defendant as a tenant at sufferance as above indicated, constituted no defense on the issue of tenancy or no tenancy, and it was not error for the trial judge to refuse to allow it.
4. Where no argument is made in respect to grounds of a motion for a new trial, these grounds will be considered abandoned.
5. The trial judge did not err in overruling the motion for a new trial.
Error from Superior Court, Troup County; Samuel J. Boykin, Judge.
Dispossessory warrant proceeding by Alton Daniel and others against J. H. Crain to gain possession of a certain house and premises. Judgment for plaintiffs, and defendant brings error.
Affirmed.
This was a dispossessory warrant proceeding, brought by Alton Daniel, Jeff Daniel, Claude Daniel, and Allen Daniel, against J. H. Crain, to gain possession of a certain house and premises in Troup County. The affidavit of the Daniels, made by their attorney, Lewis R. Morgan, and dated April 10, 1948, shows that they are the owners of the property, that J. H. Crain is the tenant and has failed to pay the rent due, and that possession has been demanded and refused. The property is described in the affidavit as follows: "situated in the Sixth Land District of Troup County, Georgia, located on the west side of the Hogansville-Mountville road and being in the southeast corner of Tract No. 3 in Block A of the subdivision shown by a plat recorded in Plat Book 2, pages 143-144 Troup County records, being the house occupied by J. H. Crain." In his counter-affidavit Crain swore that his term of rent has not expired, that he is not holding over and beyond his term, that no rent is due, and that he does not hold the premises from the Daniels as tenant or otherwise.
The following appears from the evidence adduced on the trial of the case in Troup Superior Court, on November 29, 1948: Claude Daniel purchased the property involved, for himself and his three brothers, Alton, Jeff, and Allen Daniel, at a public sale at the courthouse door on February 3, 1943, and the property was conveyed to said Daniels on the same date. This salewas made under a power of sale in a loan deed on the property made by R. T. Crain, grantor, to W. Beverly Johnson, Jr., grantee, on July 24, 1947. After the Daniels purchased the property they made the O'Neal Real Estate Company and Dave Martin agents to look after it. Dave Martin went to J. H. Crain, who was living on the property, to collect the rent, and, on a refusal to pay any rent, made a demand of Crain, on April 8, 1948, for possession of the property, and Crain refused to surrender possession. Martin testified that, in his opinion as a real estate agent, the rental value of the house and premises was $25 per month. Documentary evidence introduced includes a security deed from R. T. Crain, grantor, to W. Beverly Johnson, Jr., grantee, dated July 24, 1947, filed and recorded on July 26, 1947, Book 67, page 122, in the office of the Clerk of the Superior Court of Troup County, and a warranty deed made under power of sale by W. Beverly Johnson, Jr., as attorney in fact for R. T. Crain, grantor, to Alton, Jeff, Claude, and Allen Daniel, dated February 3, 1948, recorded February 11, 1948, Book 70, page 213, in the office of the Clerk of the Superior Court of Troup County, the property conveyed by these deeds including the property described in the affidavit made for the Daniels at the commencement of the present proceeding; a security deed from R. T. Crain, grantor, to W. B. Johnson, Jr., grantee, dated October 27, 1947, recorded October 30, 1947, Book 67, page 204, in the office of the Clerk of the Superior Court of Troup County, the property conveyed being described as "all that tract of parcel of land lying and being in Land Lot 30, 6th Land District, Troup County, Georgia, and known as Lots 29, 30, 31 and Tract 4 as per survey and plat made by E. B. Respass, dated November, 19 '.5, recorded in Plat Book 2, page 143 and 144, Clerk of Superior Court's Office, Troup County, Georgia, said lots 29, 30 and 31 being improved with four room new houses, also 2 four room houses on Tract 4 situated on lot 100 x 175 feet and approximately 12 lots 100 x 175 feet in Tract four (4)"; and a warranty deed from R. T. Crain, grantor, to W. B. Johnson, Jr., grantee, dated No vember 18, 1947, and recorded in Book 68, page 245, in the office of the Clerk of the Superior Court of Troup County, the property conveyed including the property described in the affidavit made for the Daniels.
Counsel for J. H. Crain states, in his brief, that H. T. Crain, a brother of J. H. Crain, the defendant, and his only witness, testified that the rental value of the property was not more than $20 per month, but that this testimony was omitted from the brief of evidence, and counsel for the Daniels state, in their brief, that this is true.
The court directed a verdict for the plaintiffs, and judgment was rendered for possession of the property, for $309.48 principal, plus costs of court, and for $10 per month double rent from November 30, 1948, until a surrender of the premises to the plaintiffs. The defendant's motion for anew trial was overruled, and he excepted.
Raymond W. Martin, LaGrange, for plaintiff in error.
Stokes Walton, LaGrange, Wyatt & Morgan, LaGrange, for defendants in error.
SUTTON, Chief Judge (after stating the foregoing facts).
1. (a) The defendants in error moved to dismiss the writ of error pending in this court because no parties were named therein as defendants in error. In the bill of exceptions no parties were named as defendants in error, and the style of the case in the lower court is shown as Alton Daniel et al. v. J. H. Crain. Notice, etc., before presentation of the bill of exceptions, required by the provisions of the Code Ann. Supp. § 6-903.1, was waived by "Wyatt and Morgan, by Lewis R. Morgan, attorney for plaintiff" and service of the bill of exceptions was acknowledged by "Wyatt and Morgan, attorney for defendant in error, " and it clearly appears from the record that Lewis R. Morgan was the attorney for all the plaintiffs in the proceeding in the trial court. Therefore, such acknowledgment of service is binding on all parties that were represented in the lower court by the attorney who acknowledged service of the bill of exceptions.
Code § 6-912. Since the filing of the motion to dismiss the writ of error the plaintiff in error has amended his bill of exceptions by naming all the plaintiffs in the proceeding in the lower court as defendants in error in this court, which is permitted where an acknowledgment of service has been procured as provided in Code § 6-912, with respect to persons bound by such service. Code § 6-193. Any defect in the naming of the defendants in error in the bill of exceptions, by reference to some of them by "et al." in describing the style of the case in the trial court, and by a failure to actually name any one as defendants in error, was cured by the acknowledgment of service of the bill of exceptions by their attorney of record in the trial court, thereby binding such parties, and by the subsequent amendment to the bill of exceptions, naming these parties as defendants in error. See Hayes v. Hayes, 137 Ga. 362(1), 73 S.E. 659.
(b) Defendants in error also moved to dismiss the writ of error on account of the pendency of a...
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