Huff v. Markham
| Decision Date | 27 February 1883 |
| Citation | 70 Ga. 284 |
| Parties | HUFF v. MARKHAM. |
| Court | Georgia Supreme Court |
February Term, 1883.
[This case was argued at the last term, and the decision reserved.]
1. The hearing of an application for injunction was continued from the thirteenth until the nineteenth of January, an order being passed at the time of the continuance " that if either party desires to present additional affidavits, they be shown to the adverse party at least two days before the hearing." Affidavits were filed under this order. One affidavit of complainant was filed on the day of the hearing and was not submitted to the adverse party. A portion of this affidavit, which was merely in rebuttal and contradictory of an affidavit which had been read in behalf of defendant the previous week, and the maker of which was not present, was excluded:
Held, that this was not error. The ruling of this court has gone to the extent of rejecting all affidavits not filed, and of which no notice has been given to the adverse party.
2. The failure of a tenant to pay rent gives the landlord the right of immediate re-entry and dispossession. Where a tenant holds possession of lands or tenements beyond the term for which they were rented or leased to him, or fails to pay the rent when due, and the owner shall desire possession, he has a plain remedy by warrant to dispossess such a tenant. The tenant may arrest the proceedings and prevent the removal by declaring that his term has not expired, or that the rent claimed is not due, and giving bond.
( a. ) Whether or not the act of 1866, authorizing the issuance of a warrant to dispossess a tenant for non-payment of the rent, was originally subject to objection on the ground that it contained matter in its body different from what was expressed in its title, after this act had been incorporated in Irwin's Code as a part of the statute law of the state, and after that body of law had been recognized both by the constitution of 1868 and that of 1877, the laws so codified cease to be amenable to such objection.
3. Violations of independent covenants by a landlord will not require an injunction to restrain a proceeding to dispossess a tenant holding over; especially in the absence of any charge of insolvency.
Equity. Injunction. Landlord and Tenant. Constitutional Law. Before Judge HAMMOND. Fulton county. At Chambers. January 20, 1883.
Reported in the decision.
LYON & GRESHAM; HAWKINS & HAWKINS; F. J. M. DALY, for plaintiff in error.
E. N BROYLES; ABBOTT & GRAY, for defendant.
The defendant in error, William Markham, on January 2, 1883, as landlord, sued out a warrant to dispossess Wm. A. Huff, his tenant, of certain premises therein described, upon the ground of the failure of the tenant to pay the rent when the same became due. This warrant was met by the bill in equity which is the subject-matter of the writ of error in this case. The bill charges that the property in question was a hotel, and had been leased for the term of five years, with the privilege of a renewal for a like term of years that, in pursuance of said lease, the occupancy of the premises by the tenant and the partner who was then with him began; that the contract of lease had been faithfully kept and performed by the lessees during their joint occupancy, and by the present tenant since their dissolution; that, in order to realize a profit from the said premises, in view of the length of his term of lease, the present tenant proceeded to supply the said hotel with better furniture and accommodations than it had when it was taken charge of under the lease, and to improve the property in all respects, and continued to do so until he had expended the sum of about $21,000, all of which had gone to add to the comfort and the improvement of the said hotel, and to make it more attractive to guests and patrons; that whilst he was thus appropriating his own means the landlord not only failed to perform his part of the contract under the lease, but was engaged in doing him many other wrongs and injuries, all of which are specifically charged and fully set forth in complainant's bill of complaint, and from which said failure to perform his contract, and other wrongs and injuries committed by the landlord against the said tenant, he has been rendered unable to pay the rents due under the said lease as they become due and payable; that the said failure of the landlord to keep his covenants, and his injurious and wrongful conduct to complainant and his business, and the suing out of this warrant, have completely broken down the contract of lease in his favor, and made him liable to pay complainant as damages all that he has put into said property of the faith of said landlord's covenant to be kept by him, as well as all damages suffered by reason thereof; and that, until this be done, the said landlord be enjoined from dispossessing him, and that a full accounting be had, and a decree rendered settling the rights and equities of both parties.
To this bill the respondent filed general and special demurrers, as also his answer; by the last of which he denied all the charges as set forth in complainant's bill against him, and prayed to be discharged, etc.
The parties supported the bill and answer by numerous affidavits, all of which are contained in the record, though not material to be recited here. The chancellor, upon considering the bill, answer and affidavits, and after argument had thereon, refused the injunction prayed for, and the complainant excepted.
1. The first assignment of error is the refusal of the chancellor to allow an affidavit of the complainant to be read in full, as insisted upon by his counsel, and confining them to such parts only as the defendant, who was present, could reply to. The record shows that the hearing of the application had been continued from the 13th to the 19th day of January; and on the day of the continuance it was " ordered that, if either party desires to present additional affidavits, they be shown to the adverse party at least two days before the hearing." The affidavit offered was filed on the very day of the hearing, and the chancellor certifies that the portions excluded were solely in rebuttal and contradictory of an affidavit of one Rogers, which had been read the week before, and as it had not been submitted to the adverse party, as required by the order, he rejected it.
The rejection by the chancellor of the portions of the affidavit referred to was not erroneous; indeed the rule, as laid down by this court, goes to the extent of rejecting all affidavits not filed and of which no notice has been given to the adverse party. In the case of Boyce vs. Burchard, 21 Ga. 74, where affidavits were offered by complainant, at the hearing of the motion for granting injunction, in support of his bill,...
To continue reading
Request your trial