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Lawskills.com Georgia Caselaw
HESTERS et al. v. SAMMONS.
39416.
Dispossessory proceedings. Irwin Superior Court. Before Judge Gray.
BELL, Judge.
1. The voluntary surrender of possession by the tenant rendered moot the questions as to the legal sufficiency of the grounds for dispossession and the alleged defective description of the property in the warrant.
2. The trial court properly corrected the judgment to conform to the verdict.
Plaintiff instituted dispossessory proceedings by his dispossessory affidavit and warrant issued thereon alleging that the defendants were "in possession, as tenant, of a house and premises situated about 10 mi. east of Ocilla, Georgia on Highway No. 32 in said State and county, the property of W. T. Sammons; that said tenant fails to pay the rent now due on said house and premises, or that the said tenant is holding said house and premises over and beyond the term for which the same was rented to him, that the said owner desired and has demanded possession of said house and premises . . ." and that possession has been refused by the defendants. Defendant, Alma Hester, signed a forthcoming bond upon which he and one Owen Luke, as security, obligated themselves for the forthcoming of certain personalty levied on and described therein which was filed in the office of the clerk of superior court as a part of the proceedings in the pending dispossessory action.
At the trial of the case it was announced in open court that the parties were agreeable to a consent verdict in favor of the plaintiff for the premises in dispute and the sum of $1,000 and costs. The trial judge directed such a verdict. Counsel for the plaintiff prepared the judgment providing that plaintiff recover of the two defendants as principals and Owen Luke, as security, the sum of $1,000. The jury found a verdict in favor of the plaintiff for the premises .in dispute and $1,000 "over costs." The court then entered judgment awarding possession of the premises to the plaintiff and entered judgment against the defendants as principals and Owen Luke, as security, in the sum of $1,000 and accrued costs.
The defendants filed their motion to vacate, set aside and arrest the verdict and judgment on the grounds that no cause of action was stated in the plaintiff's dispossessory affidavit; that the allegation of the dispossessory affidavit did not contain a definite or positive statement of the ground or grounds of the attachment and warrant issued thereon; that the description of the property contained therein was too vague, indefinite, and not sufficient to enable the sheriff to identify the property of which possession was sought to be recovered; that there was no basis in law or fact for the judgment to have been rendered against the defendants, as principals, and Owen Luke, as security, for the sum of $1,000; that these defects appeared on the face of the record and, therefore, the judgment, execution and writ of possession should be canceled by the court.
At the hearing upon this motion of the defendants, the court vacated the judgment as to Owen Luke and reformed the judgment to award the plaintiff possession of the premises, the clerk of court was directed to issue a writ of possession, and the plaintiff was given judgment against the defendants in the sum of $1,000 and accrued costs. The other relief sought by the defendants' motion was denied, to which order the defendants excepted.
1. The defendants' first contention is that the allegations in the dispossessory affidavit and warrant "that said tenant fails to pay the rent now due on said house and premises, or that the said tenant is holding said house and premises over and beyond the term for which the same was rented to him . . ." is not a statement of any ground which may serve as a foundation for the maintenance of a dispossessory proceeding.
The record shows that in open court the parties agreed that the sum of $1,000 was owed by the defendants to the plaintiff. While nothing was said as to whether this amount was for rent unpaid or for rent due for holding beyond the term, this makes no difference as it must be presumed that the amount included all that was due for whatever reason.
Neither is there any merit in the contention that the allegedly fatally defective description of the property in the warrant compels the granting of the motion to arrest and vacate the judgment.
It appears that following the consent judgment, possession of the property was voluntarily surrendered. This surrender of the property renders moot the questions as to whether the description of the property in the warrant was sufficient or not or whether there was a statement of any proper ground which could serve as a foundation for maintaining the dispossessory proceedings.
The trial court properly denied the motion to vacate and set aside the judgment on these grounds.
2. The defendants further argue that the judgment did not conform to the verdict and thus Code 110-301 makes it void.
The verdict of the jury in this case reads as follows: "We, the jury, find in favor of the plaintiff for the premises in dispute and $1,000 over costs." Following this verdict, the judge entered judgment in favor of the plaintiff against the defendants, as principals, and Owen Luke, as security, for $1,000 and accrued costs and further awarded to plaintiff possession of the premises.
The defendants then moved to vacate and set aside this judgment on the ground that there was no lawful basis in law or fact for the judgment to have been rendered against them as principals, and Owen Luke, as security, for the sum of $1,000 and costs. The trial judge, pursuant to this motion, reformed the judgment to delete Owen Luke, as security, so that the amended judgment was only against the defendants, Mr. and Mrs. Alma Hester. The basis of this reformation of the judgment was that Owen Luke was not a party to the case.
From the record it appears that this deletion of the security from the judgment by reforming it was proper for still another reason. Owen Luke was security upon a forthcoming bond for the delivery of certain described personal property to the sheriff, thus the terms of the bond did not extend to make him liable for the delinquent rents nor to obligate him to deliver possession of the premises which he obviously did not have.
Not only did the final reformed judgment conform to the verdict, but this reformation by the trial judge was a correction of previous error. A judgment may be amended by order of the court to conform to the verdict upon which it is based, even after an execution issues. Code 110-311.
The other grounds of the defendants' motion in arrest of judgment were not argued and are deemed abandoned. "A mere recital in the brief of counsel of the existence of an assignment of error without arguments or citations of authority in its support is insufficient to save it from being treated as abandoned." B-X Corp. v. Jeter, 210 Ga. 250 (4) (78 SE2d 790); Head v. Lee, 203 Ga. 191 (5) (45 SE2d 666).
The trial judge properly overruled the motion in arrest of judgment.
Judgment affirmed. Felton, C. J., and Hall, J., concur.
Charles R. Free, Virgil H. Sheppard, contra.
Robert B. Sumner, W. Emory Walters, J. Laddie Boatright, for plaintiffs in error.
DECIDED MAY 30, 1962 -- REHEARING DENIED JUNE 13, 1962.
Friday May 22 22:54 EDT


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