Payne v. Hightower

• Decision Date: 07 October 1944
• Docket Number: 14977.
• Citation: 31 S.E.2d 816,198 Ga. 421
• Parties: PAYNE v. HIGHTOWER.
• Court: Georgia Supreme Court

31 S.E.2d 816

198 Ga. 421

PAYNE v. HIGHTOWER.

No. 14977.

Supreme Court of Georgia

October 7, 1944

Syllabus by the Court.

1. The joining as defendant of a real-estate agent, as to whom there is no charge of the commission of any unlawful act against the plaintiff irreparable in damages, and against whom only incidental relief is sought, in an equitable action against his non-resident principal, who is the only defendant against whom substantial euqitable relief is sought, will not afford jurisdiction in the county of the residence of the agent. This ruling is elaborated in the opinion.

2. In an attempted equitable proceeding, by a subtenant against a non-resident owner of premises, in which the subtenant seeks to retain possession of the property and seeks to enjoin from interference with the plaintiff's possession and occupancy, and in which the plaintiff ineffectually seeks to establish jurisdiction in the court by joining the resident renting agent of the owner, jurisdiction will not be established or preserved by an amendment to the petition seeking to oust the plaintiff's tenant, a second subtenant, since any question as to the plaintiff's right to evict such second subtenant is legal and not equitable. Accordingly, such amendment was properly stricken on written motion or demurrer.

3. 'Where plaintiff, without first having obtained the sanction of the court, merely files an amendment to his petition in the office of the clerk, which, upon the hearing of the case, the court refuses to allow, the paper does not become a part of the record by merely filing it in the office of the clerk; and if exception is taken to the refusal to allow it, the proposed amendment should be brought up in the bill of exceptions or attached thereto as an exhibit properly identified, and cannot be brought up by specifying it as a part of the record of which it never legitimately became a part.' Simmons & Kell v. Freeman, 146 Ga 118(2), 90 S.E. 965; Holmes v. Cobb Real Estate Co., 142 Ga. 56(1), 82 S.E. 496. Accordingly, irrespective of the correctness of the judgment of the court indismissing the second amendment to the petition as having been offered after the petition had been dismissed, a bill of exceptions which does not contain or attach the amendment as an exhibit presents nothing to this court for consideration.

The petition of John H. Payne brought in Fulton County, Alleged that J. B. Hightower a resident of DeKalb County, owned the building at 75 1/2 Hunter St. S. W., in Atlanta; that C. G Aycock Realty Company, a corporation having a place of business in Fulton County, is acting as his rental agent for said premises; that the plaintiff resided in unit 3 therein, as sublessee under A. S. Johnson, the lessee of Hightower, until August 1, 1939, and thereafter as sublessee of C. H. Robinson, as Southern Employment Corporation; that the plaintiff had subleased unit 2 from Robinson, and had in turn leased that unit to Virgil Hawkins; that Robinson's lease extended from August 1, 1939, to August 1, 1943; that on August 31, 1943, the plaintiff offered to renew his lease and continues to do so, and on that day gave Robinson a check for rent for September, 1943, 'and renewal of contract' which was delivered to Hightower and endorsed by him; that in August, 1939, Hightower numbered the units in said building, but now is making a fictitious change in the numbering system inaugurated by him to his agent, the defendant C. G. Aycock Realty Company, and has elected to say that the plaintiff now occupies units 3 and 4; that Hightower has not renewed his lease to Robinson but is demanding more rent; that on April 7, 1944, C. G. Aycock Realty Company wrote the plaintiff that Hightower had turned said property over to them for the collection of rent, and that Hightower had given the plaintiff notice on March 1st to vacate, and that his rent was $20 a...