Hamilton v. McCroskey

• Decision Date: 26 January 1901
• Citation: 37 S.E. 859,112 Ga. 651
• Parties: HAMILTON et al. v. McCROSKEY.
• Court: Georgia Supreme Court

37 S.E. 859

112 Ga. 651

HAMILTON et al. v. McCROSKEY.

Supreme Court of Georgia

January 26, 1901

Syllabus by the Court.

1. The statutory liability for "double rent," incurred by a tenant for unlawfully withholding from a landlord the possession of rented premises, is not a demand arising ex contractu. The provision in section 4817 of the Civil Code that judgment shall go against such a tenant "for double the rent reserved or stipulated to be paid" relates merely to the measure of the amount for which the tenant shall be liable, and does not characterize the landlord's demand for double rent during the period of unlawful detention as a debt springing out of the original contractual relation.

2. A demand of the nature above indicated is not provable in bankruptcy, and therefore the right of a landlord to proceed with a dispossessory warrant, and, as an incident thereto, to obtain a judgment for double rent, is not affected by the tenant's discharge in bankruptcy, obtained during the pendency of the dispossessory proceeding.

3. There was, in the present case, as to all disputed issues sufficient evidence to warrant the verdict which the jury returned in the plaintiff's favor, and there was no error in denying a new trial.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by L. M. McCroskey against J. M. Hamilton and others. Judgment for plaintiff. Defendants bring error. Affirmed.

D. S Craig and Hamilton Douglas, for plaintiffs in error.

Reed & Hartsfield, for defendant in error.

LEWIS J.

On June 23, 1896, Mrs. L. M. McCroskey, through her agent, swore out a dispossessory warrant against J. S. and K. S. Hamilton, the affidavit alleging that the tenants had failed to pay the rent due on the house and premises, and that they were holding same over and beyond the term for which they rented plaintiff having demanded possession of the premises, which defendants refused to deliver. In reply the defendants denied that the term for which they had rented the land had expired, and alleged that they were not holding over and beyond their term. The case, after coming to this court (see 108 Ga. 640, 34 S.E. 111), continued pending in Fulton superior court until the September term, 1899, when defendants offered an amendment to their pleadings, alleging that since the filing of their original counter affidavit, to wit, on December 1, 1899, they had been each regularly discharged by the district court of the United States sitting in bankruptcy from all debts and claims provable in bankruptcy against their respective estates, and which were in existence on the 5th day of September, 1899, when their petitions for adjudication were filed. They further claimed in their amendment that by virtue of their discharge in bankruptcy they were released from all liability to the plaintiff, and that they had delivered possession of the property in controversy to her on October 14, 1897, and had moved away from the place. On the trial the jury found a verdict for the plaintiff, and also found for the plaintiff the sum of $960 as double rent; and judgment was accordingly rendered against the defendants and against Joseph Jacobs, the security on their bond. Defendants moved for a new trial on the general grounds that the verdict was contrary to law and the evidence, and because of alleged error of the court in charging the jury to the effect that the discharge in bankruptcy pleaded by the defendants could not protect them from this case, or cause it to abate, or prevent the plaintiff from proceeding with it; and that, therefore, as matter of law, all further question as to the plea of bankruptcy was removed from the consideration of the jury. The defendants further complained of the charge of the court to the effect that if the jury should decide from the evidence that the defendants were tenants holding over, or that they failed to pay the rent when it was due, they could look to the evidence, and see the value of the premises for rent, and their verdict should be for double that amount. The court below overruled the motion for a new trial, to which judgment the defendants except.

This proceeding was instituted by the plaintiff below by virtue of the provision of section 4813 of the Civil...