Jackson v. Hardin, 31308.

• Decision Date: 20 June 1946
• Docket Number: No. 31308.,31308.
• Citation: 38 S.E.2d 695
• Parties: JACKSON. v. HARDIN.
• Court: Georgia Court of Appeals

38 S.E.2d 695

JACKSON.

v.HARDIN.

No. 31308.

Court of Appeals of Georgia, Division No. 2.

June 20, 1946.

Syllabus by the Court.

1. An assignment of error on refusal to award a nonsuit will not be considered where the case proceeded to judgment and the motion for a new trial included the ground that the judgment was contrary to and unsupported by the evidence.

2. The evidence in this case was sufficient to show that the two months' notice required by the Code, § 61-105, to terminate the tenancy at will was given to and received by the tenant.

3. The evidence in this case was sufficient to show a demand by the landlordand a failure or refusal by the tenant to deliver possession of the rented premises, which demand and refusal were made after the termination of the tenancy at will and before the institution of the dispossessory warrant proceedings.

4. The judgment in favor of the landlord was authorized, and the court did not err in overruling the tenant's motion for a new trial.

Error from Civil Court, Fulton County, Appellate Division.

Dispossessory warrant proceeding by W. L. Hardin against C. H. Jackson to recover possession of realty. Judgment for plaintiff, defendant's motion for new trial overruled, and defendant brings error.

Judgment affirmed.

E. L. Fowler and C. E. Moore, both of Atlanta, for plaintiff in error.

Douglas, Evans & Cole and F. Lee Evans, all of Atlanta, for defendant in error.

SUTTON, Presiding Judge.

W. L. Hardin instituted a dispossessory warrant proceeding against C. H. Jackson, on March 2, 1946, in the civil court of Fulton county, upon the ground that the defendant, as his tenant, was holding possession of the rented premises over and beyond the term for which the same were rented to him and had refused plaintiff's demand to surrender possession thereof. It was set out that the plaintiff had complied with the regulations of the Administrator of Price Administration with reference to the institution of said proceedings. The defendant filed a counter affidavit, wherein he denied that he was holding the premises over and beyond the term for which the same were rented to him and denied that any demand had been made upon him for possession of the premises. The defendant further set out that the plaintiff had failed to comply with the rent regulations of the Office of Price Administration with reference to evictions.

On the trial of the case before the judge without a jury, the defendant's motion for a nonsuit was overruled, and the judge rendered a judgment in favor of the plaintiff for the premises and for double rent thereon from March 1, 1946, and directed that the plaintiff be placed in possession of the premises and that execution issue against the defendant and the surety on his bond for said sum and for costs of court. The defendant's oral motion for a new trial was overruled, and he appealed the case to the appellate division of said court, which affirmed the judgment of the trial judge. The exception here is to the judgment overruling the defendant's motion for nonsuit, and to the judgment overruling the motion for a new trial.

1. An assignment of error on a refusal to award a nonsuit will not be considered by this court where, after such refusal, the judge, trying the case without a jury, enters a judgment in favor of the plaintiff and the defendant makes a motion for a new trial which includes the ground that the judgment is contrary to the evidence and without evidence to support it. Schaffer v. Moore, 59 Ga.App. 542(1), 2 S.E.2d 151, and citations. But this court will consider questions as to the sufficiency of the evidence only under the motion for a new trial. Guffin v. Kelly, 191 Ga. 880 (2), 14 S.E.2d 50.

2. The defendant was a tenant at will of the plaintiff, and was entitled to two months' notice to terminate the tenancy. Code, § 61-105; Hooks v. Lease, 68 Ga. 850, 24 S.E.2d 601. The plaintiff testified that "The tenancy relationship between us was tenancy at will from month to month. I gave him written notice on December 29, [1945] to terminate the tenancy. The notice was sent him by United States mail, registered. That is the letter and that...