Shippen v. Folsom

• Decision Date: 05 September 1945
• Docket Number: 15235,15239.
• Parties: SHIPPEN et al. v. FOLSOM. FOLSOM v. SHIPPEN et al.
• Court: Georgia Supreme Court

35 S.E.2d 915

200 Ga. 58

SHIPPEN et al. v. FOLSOM.

FOLSOM v. SHIPPEN et al.

Nos. 15235, 15239.

Supreme Court of Georgia

September 5, 1945

Opinion Modified Oct. 5, 1945.

Rehearing Denied Nov. 19, 1945.

Syllabus by the Court.

1. 'In a case where the undisputed evidence shows that the relation of landlord and tenant exists between the parties the execution of a warrant to dispossess the tenant will not be enjoined by a court of equity; the remedy of the tenant if he has any defense, being to file the counter-affidavit provided for by the statute; and this is so though the tenant, on account of poverty, may be unable to give the bond and security required as a condition precedent to the filing of such counter-affidavit.' Johnson v. Thrower, 117 Ga. 1007(2), 44 S.E. 846. See also Napier v Varner, 149 Ga. 586(2), 101 S.E. 580; DeFloreo v. Tarvin, 193 Ga. 760, 762, 20 S.E.2d 29; Grimmett v. Barnwell, 184 Ga. 461, 469, 192 S.E. 191, 116 A.L.R. 257; Dowling v. Doyle, 149 Ga. 727, 730, 102 S.E. 27; Brown v. Watson, 115 Ga. 592(1), 41 S.E. 998. The same rule applies in the absence of facts justifying the application of equitable principles such as for the prevention of fraud (Huff v. Markham, 71 Ga. 555), even though the tenant in seeking equitable relief from the statutory writ may pay or tender the amount of rent provided for by the lease, together with all costs of the proceeding. White v. Lawrence, 113 Ga. 528(2), 66 S.E. 171; Hall v. Holmes, 42 Ga. 179.

2. Under the foregoing rules, the petition, when treated without reference to the relief asked for under the provisions of the remedial statute approved February 12, 1945, authorizing declaratory judgments, was subject to the demurrer interposed.

3. Under the declaratory judgment statute the tenant was privileged to invoke, by amendment to his equitable petition, remedial powers of the court thus delegated, in construing the rent contract with respect to controversies as to its proper construction in so far as such interpretation might guide his future acts and conduct with respect to points of actual justiciable controversy. Pritchard v. Savannah Railroad Co., 87 Ga. 294, 296, 13 S.E. 493, 14 L.R.A. 721; Baker v. Smith, 91 Ga. 142(1), 16 S.E. 967; Bowers v. Keller, 185 Ga. 435, 195 S.E. 447.

4. The declaratory judgment statute of this State expressly declares that it relates to 'cases of actual controversy;' but even in the absence of any such provision, 'a similar limitation is generally implied and observed by the courts both in America and in England. No proceeding lies under the declaratory judgments acts to obtain a judgment which is merely advisory or which merely answers a moot or abstract question.' 16 Am.Jur. 282, § 9.

5. The declaratory judgment statute does not, however, purport to reach back and nullify the rights, remedies, and penalties in favor of landlords which have already accrued as provided by the Code, §§ 61-301 to 61-307, inclusive, relating to dispossessory warrants when the tenant is already in default. This is true for the reason that, 'A court will not take jurisdiction to render a declaratory judgment where another statutory remedy has been especially provided for the character of case presented, if the effect would be to interfere with the right of the parties to appeal to the court given jurisdiction in that particular matter by the statute.' 16 Am.Jur. 295, § 21. See annotations in 12 A.L.R. 75, 50 A.L.R. 48, 68 A.L.R. 119, 87 A.L.R. 1219. The court therefore erred in enjoining the landlord from resorting to the remedy provided by law for his protection, in so far as it related to rights already accrued on account of past-due claims for rent.

6. The court, in conformity with the authority given under the declaratory judgment statute, properly construed, except as provided by paragraph two of its opinion, the provisions of the contract in dispute to which exceptions are taken, and, in accordance with that statute, by section seven of its decree, properly left for determination by a jury the actual amount of the future rent liability for which it adjudicated that the contract made the tenant liable. If in this proceeding the amount of such liability should be adjudicated prior to any such determination for past-due rent under a subsequent dispossessory warrant, such finding by a jury in this case on such question of fact would govern and control the amount due in the other proceeding, and vice versa. This would be true despite any contrary or inconsistent ruling by the court in section ten of its decree, to the effect that the plaintiff (lessee) has made 'deposit with the clerk of this court to cover the percentage of receipts from the space in controversy.' See Kennedy v. McCarthy, 73 Ga. 346.

7. 'The courts will ordinarily refuse to entertain an action for a declaratory judgment as to questions which are determinable in a pending action or proceeding between the same parties.' 16 Am.Jur. 295, § 22. But in this case, prior to the institution of any dispossessory warrant proceeding, the court having by its judgment properly construed the contract (except as indicated by paragraph 2 of the opinion), such rulings, pending the final hearing, have the force and effect of a judgment or decree, and as such, and to such extent, are binding on all of the parties. The judgment having merely adjudicated the fact of certain liabilities, without thus far determining the amounts thereof, it follows that, in order for the tenant to forestall liability and penalties made and provided for under a dispossessory warrant statute relating to cases where rent is past-due and unpaid, he must, at his peril, and prior to becoming amenable to liability and penalties under such a proceeding, pay or tender to the landlord to full amount of the rent past-due and unpaid. This is true for the reason that, while the court now has jurisdiction under the statute to adjudicate the amount of such future liabilities under the contract, it cannot deprive the landlord of his material rights (such as the giving of a bond by the tenant, liability for double rent and forfeiture of the lease) given him under the dispossessory warrant statute, merely by asking the court, not what he should have done, but what in the future he ought to do. In order to avoid any such complication, recourse to the declaratory judgment statute should be had prior to any default in the payment of rent, which default the court in this case has adjudged to be the fact.

Shippen leased to Folsom the Pershing Point Apartments for a term of twenty years, the lease declaring that 'nothing herein shall be construed so as to create any other relation between the lessor and lessee than that of landlord and tenant.' The lease provided for the payment of a minimum rental of $2000 per month, and for additional rental represented by a stated graduated percentage of the gross room or apartment receipts derived by the lessee over and above stated named amounts. The lease further provided as follows: 'It is covenanted and agreed that time is of the essence of this contract, and that, in the event any installment or rent provided for herein shall remain unpaid for thirty days after it is due, or in the event the lessee fails or refuses to perform any of his other obligations and covenants under this contract, the lessor may at her option cancel and terminate this lease, and re-enter and take possession of the demised property, provided that the lessor shall first give lessee ten days' notice in writing of her intention to exercise her said option, and providing further that within said ten days the lessee does not comply with his obligation under the contract.' Certain demands for rent were made by the owner for alleged rent accrued and past-due, which were denied and refused by the tenant. Upon the owner threatening to enforce his demands, the lessee filed a bill in the superior court, seeking to construe the terms of the agreement, and asking that the owner be enjoined from giving petitioner 'any notice of eviction,' and tendered in court a stated sum, which he avers more than covers any possible claim for rent by the owner. The nature of the points in controversy appears in the judgment of the trial court, which is hereinafter set forth.

The petition was amended by invoking the provisions of the declaratory judgment statute, approved after the filing of the petition. This statute, Laws 1945, p. 137, is herein set forth as follows: 'Section 1(a). In cases of actual controversy the respectively superior courts of the State of Georgia shall have power upon petition, or other appropriate pleading, to declare rights, and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such. (b) In addition to the cases specified in paragraph (a) of this section, the respective superior courts of the State of Georgia shall have power upon petition, or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, in any civil case in which it appears to the court that the ends of justice require that such declaration shall be made, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such. Section 2. Further relief based on or included in a declaratory judgment or decree may be granted in the same suit. The court, in order to maintain the status pending the adjudication of the questions or to preserve equitable rights, may grant injunction and other interlocutory extraordinary relief,...