Opinion
38268.
DECIDED JUNE 2, 1960. REHEARING DENIED JUNE 29, 1960.
Dispossessory warrant. Bacon Superior Court. Before Judge Roddenberry. January 16, 1960.
J. Laddie Boatright, R. E. Lawson, for plaintiffs in error.
T. J. Townsend, Memory, Barnes Memory, S. F. Memory, Jr., contra.
1. The evidence is sufficient to sustain the verdict, and the court did not err in overruling the general grounds of the motion for a new trial.
2. Nor did the court err in the rulings on any of the special grounds.
3. It was not reversible error for the court to overrule the motion for a judgment notwithstanding the verdict, inasmuch as the record is replete with evidence sustaining the verdict of the jury.
DECIDED JUNE 2, 1960 — REHEARING DENIED JUNE 29, 1960.
Mrs. Jeanette B. Flanders (hereinafter called the administratrix) instituted proceedings to evict Mr. and Mrs. F. W. Crews (hereinafter called the defendants). The defendant Mrs. Crews was an heir-at-law of Ben Bland, deceased, whose estate the administratrix Mrs. Flanders was settling. The administratrix made an affidavit, the essential parts of which read: "That Mr. and Mrs. F. W. Crews are in possession, as tenant, of a house and farm buildings situated on a farm of 104 acres, more or less, in lot of land number 413 370 in the 5th Land District of Bacon County, Georgia, known as the Ben Bland Farm, together with the farm in said State and county, the property of Ben Bland estate. 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 were rented to him; that the said owner administrator desires and has demanded possession of said house and premises, and the same has been refused by the said Mr. and Mrs. F. W. Crews." A dispossessory warrant was issued on this affidavit, to which proceeding the defendants filed a counter-affidavit that their term of rent had not expired; that they were not holding over and beyond their term; that the alleged rent was not due, and that they were not holding the premises from the administratrix nor from any one under whom she claims, but that on the contrary the defendants had a bona fide right to possession of the property. The case came on for trial and on the call the defendants made an oral motion to dismiss the dispossessory proceeding on the ground that the affidavit did not state positive ground or grounds which were sufficient to authorize the issuance of a dispossessory warrant, and on the ground that the description of the premises was insufficient as a basis of the dispossessory proceedings. The administratrix subsequently filed a purported amendment to the dispossessory affidavit striking therefrom the allegation that the defendants failed to pay the rent.
Evidence in the trial showed that Mrs. Flanders had letters of administration on the estate of her deceased father; that the Ordinary of Bacon County had given her leave to sell certain real estate on behalf of the estate of the deceased; that she claimed a right to sell the disputed premises because of a deed executed by the six children of the deceased. The deed had been executed covering the children's interest in land which had been owned by their mother, who had previously died intestate. This deed was recorded subsequently to the death of the intestate Bland. The record shows that the mother of the administratrix died May 11, 1953, and that the father died May 5, 1957; that since the death of the mother the defendants had been living on the disputed premises; and that the defendant Mrs. Crews was a sister of the administratrix. The record also shows that the administratrix gave notice that she wanted possession of the disputed premises and two weeks later, on January 14, 1958, dispossessory proceedings were instituted.
It is the contention of the defendants that it was agreed between the heirs-at-law that the defendants move into the disputed premises to care for the intestate during his lifetime; that they were to farm the place and share the proceeds with the intestate during his lifetime; and that at his death they would have possession and use of the premises during their lifetime as a consideration for the care of the intestate, their contention being also that they were not share croppers or tenants, nor did they rent the premises from any one. The administratrix testified that after her father died she talked with the defendants and in the conversation she found out that they were share croppers and that during the year the intestate passed away "all of us got together and we tried to come to some agreement about the place, and there never was any agreement . . . we told them [meaning the defendants] being they had a crop started they could stay there and finish the crop that year, and we gave them everything they made during the year 1957." She testified further that there was nothing said about extending such an agreement beyond that year, whereupon the administratrix sent a letter to the defendants stating that the administratrix did not want to rent the farm to the tenants the next year; that the heirs agreed to sell the place to the defendants and they wouldn't agree on a price; that this offer to sell was for the purpose of paying off the indebtedness and expenses that came up to settle the estate. Mrs. Crews testified, as has been shown above, that she and her husband were to take care of her father during his lifetime and then she and her husband were to live on the premises for their lifetime. The evidence is extremely conflicting as to whether or not the other children of the deceased agreed for the defendants to have a right to live in the house during the lifetime of the defendants.
The jury returned a verdict in favor of the administratrix. The case is before this court on the general grounds, five special grounds, and a motion for a judgment notwithstanding the verdict.
1. As to the general grounds we have set out the evidence hereinabove and it is our opinion that it is entirely sufficient to sustain the verdict.
2. Special ground 1 assigns error because the court, on its own motion, excused Harvey Turner, one of the petit jurors called to serve in the panel of twenty-four jurors. The court based the ruling on the question by the court: "Mr. Turner, did you hear the parties whose names I have previously called?" Answer by Mr. Turner: "I just don't know whether or not I am related by blood or marriage as close as third cousin to any of them." The court then and there, on its own motion, ruled: "I am going to excuse him myself so we won't get in any trouble." The defendants immediately objected to the juror being summarily dismissed by the court on its own motion, contending that the juror was not disqualified since there was no sworn testimony of his incompetence. After this objection, the court made this additional statement: "All right, put this note in the record from the court: That the person whose name was called, to wit: Mr. Turner, stated that as far as he knows he is not disqualified, but Mrs. Flanders, a party to the case, made the statement to this court as to relationship, and if this party's statement is correct would probably disqualify this juror. Therefore the court dismisses this juror on its own motion." Counsel for the defendants then pointed out that the party's statement as to the juror's qualification or possibility of disqualification was not shown under oath. Counsel for the defendant cited in support of their contention Mayor c. of Cartersville v. Lyon, 69 Ga. 577. In that case three jurors were stricken from the panel on the ground that they were citizens of Cartersville and were not competent jurors, since that city was the defendant. The Supreme Court said that the court erred in striking these jurors because such action altered the law as it stood when the case of Mayor c. of Columbus v. Goetchius, 7 Ga. 139, was decided. In that case objection was made to certain jurors serving because they were citizens of the City of Columbus. The court ruled that being a citizen of the defendant city was not a disqualification. In Benford v. State, 18 Ga. App. 14 ( 88 S.E. 747), cited by counsel for the administratrix, the Court of Appeals held that as a general rule the trial judge may excuse jurors for any reason addressed to his sound discretion, but that he cannot excuse a member of a regularly drawn and summoned jury unless he has some legal excuse. There the court ruled that since no reason was given as to why the judge excused the jurors that it must be presumed that he had a valid reason for excusing them and that, therefore, it was not an abuse of the discretion on the part of the trial court to excuse such jurors. In the instant case a reason was given but the witness stated that he did not know whether or not he was related to the defendants in the prohibitory degree of relationship. It is our opinion that the court did not abuse his discretion. In Fulton County v. Amorous, 89 Ga. 614 (2) ( 16 S.E. 201), the Supreme Court held: "That some of the jurors drawn but not impaneled were excused by the court for causes not expressly provided for by statute, is not ground for challenge to the array." This special ground is not meritorious.
Special ground 2 assigns error because it is alleged that the court erred in allowing an amendment to the original affidavit in the following words: "That said tenant fails to pay the rent now due on said house and premises." Counsel for the defendants contend that this amendment should not have been allowed because it merely changes the cause of action or defense and by allowing the amendment the court erred in that the opposite party should have had a reasonable time for answering such amendment. This special ground is not meritorious on this basis because, as stated in Kelly v. Strouse Bros., 116 Ga. 872, 874 (6) ( 43 S.E. 280), "It is not the office of a motion for a new trial to call in question the legal sufficiency of the pleadings of the plaintiff. The case of Francis v. Wood, 75 Ga. 648, distinguished." See also Nixon v. Nixon, 194 Ga. 301, 302 ( 21 S.E.2d 702). This special ground, as well as special ground 3 also contends that the description of the property involved was not sufficient in the dispossessory proceedings to enable the sheriff to identify the property and was therefore not a sufficient description for obtaining a warrant to dispossess a tenant.
Special ground 3 contends that the court erred in overruling the oral motion in the nature of a general demurrer to strike the dispossessory proceeding as being void for want of sufficient description of the premises. Under the authority stated in the beginning of this discussion of special ground 2, the sufficiency of the pleadings in relation to the description of the property cannot be tested in a motion for a new trial. It follows that special grounds 2 and 3 are not meritorious.
Special ground 4 assigns error because it is alleged that the court erred in failing to instruct the jury clearly and fully as to all material issues in the case and the principles of law applicable thereto. It is contended that the questions of landlord and tenant, tenancy at will, and tenancy at sufferance should have been charged. Error is assigned on the failure of the trial court to charge certain principles of law, but the special ground does not set out what the court should have charged, hence the assignments of error in this special ground are too general and indefinite for determination by this court. See Daniel v. Etheredge, 198 Ga. 191 (12) ( 31 S.E.2d 181); Spinks v. Jenkins, 75 Ga. App. 414 ( 43 S.E.2d 586); Allen v. Barrow, 93 Ga. App. 894 (1) ( 93 S.E.2d 177).
Special ground 5 assigns error because of the failure of the court to allow counsel for the defendants to present newly discovered evidence. The motion to present this evidence was made before the charge of the court. This record does not show that the defendants complied with the provisions of Code § 70-205. That section provides that in a motion where a court is asked to consider newly discovered evidence, if witnesses are involved, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced. See Ivey v. State, 154 Ga. 63 (6) ( 113 S.E. 175); Nichols v. Kilpatrick, 157 Ga. 884, 885 (3) ( 122 S.E. 611); Anderson v. State, 190 Ga. 455 (5) ( 9 S.E.2d 642); Laney v. Barr, 61 Ga. App. 145, 148 (11) ( 6 S.E.2d 99). This special ground is not meritorious.
3. We now come to consider the matter of the motion for a judgment notwithstanding the verdict. We have gone into the evidence in some detail hereinabove, and it is our considered opinion that the trial court did not abuse its discretion in refusing to direct a verdict in favor of the defendants. Failure to grant a motion for a judgment notwithstanding the verdict is reversible error only where the evidence shows conclusively that the jury arrived at an obviously incorrect verdict.
The court did not err in overruling the motion for a judgment notwithstanding the verdict.
Judgment affirmed. Carlisle and Frankum, JJ., concur. Townsend, J., concurs in the judgment.