Opinion
31419.
DECIDED OCTOBER 26, 1946.
Dispossessory warrant; from Fulton Civil Court — Appellate Division. July 17, 1946.
Harold Karp, for plaintiff in error. George B. Rush, contra.
1. Where a dispossessory warrant is issued and served on two defendants, the action does not abate on the death of one of the defendants before trial thereon, but the plaintiff may proceed against the surviving defendant to remove her from the premises.
2. On conflicting evidence, a finding of fact by a judge, trying the case without the intervention of a jury, will not be disturbed by this court.
3. The acceptance by the landlord, from a tenant, of rent which had accrued subsequently to the institution of a dispossessory-warrant proceeding, based on the ground that the tenant was holding the premises over and beyond the term for which they were rented, would not estop the landlord from pressing his action to obtain possession of the premises or demand a finding that, by accepting such rent, the landlord had entered into a new contract of rental with the tenant, whereby she became a tenant at will of such premises.
4. Rent regulations issued pursuant to the Emergency Price Control Act, adopted under war powers, are paramount and supersede State laws as to rights of landlords and tenants in State courts.
( a) The interpretation of a Federal rent regulation by the Office of Price Administration is not binding on the courts, but is only persuasive in this respect.
( b) Where an action to dispossess a tenant is pending in a State court on the date a rent regulation issued under the Emergency Price Control Act becomes effective, the provisions of the rent regulation supersede the State statutes, and the landlord may not dispossess such tenant except in compliance with the provisions of the regulation.
( c) Where the Federal rent regulations required that a certificate be obtained from the Office of Price Administration, authorizing a landlord to pursue his proceeding to evict a tenant before such tenant could be legally dispossessed or evicted, and it appears that the landlord had not obtained such certificate, a judgment directing that the landlord be placed in possession of the premises is contrary to law.
DECIDED OCTOBER 26, 1946.
This was a dispossessory-warrant proceeding instituted on August 18, 1944, by J. S. Fornara against J. C. Hyde and Mrs. J. C. Hyde in the Civil Court of Fulton County, on the ground that the tenants were holding possession of the premises over and beyond their term and had refused the demand of the plaintiff to surrender possession. The warrant was served by leaving a copy with Mrs. J. C. Hyde and by posting a written notice on the door of the house. On August 22, 1944, the court entered an order that the dispossessory warrant had been duly served and that this was based on a notice given by the landlord directed to J. C. Hyde and served upon or left with Mrs. J. C. Hyde, on May 31, 1944, but that it appeared that J. C. Hyde was in the armed forces, and the defendants were ordered to show cause why the warrant should not proceed. The defendant, Mrs. J. C. Hyde, filed a response setting out that her husband was in the Army and that the relationship of landlord and tenant was between the plaintiff and her husband, and she prayed a dismissal as to her as a defendant. On hearing this motion, the court entered a stay until further order of the court.
On January 18, 1945, on motion of the plaintiff, notice was given Mrs. J. C. Hyde to show cause why the stay should not be terminated. On hearing this motion, on March 25, 1946, the stay was terminated.
On April 10, 1946, Mrs. J. C. Hyde filed a counter-affidavit, setting out that the relationship of landlord and tenant did not exist between the plaintiff and her at the time the affidavit was made and the dispossessory warrant was issued and served; that her husband, J. C. Hyde, was killed in action on December 17, 1944, and there was no administration on his estate; that the plaintiff, by receiving rent from her, had created the relationship of landlord and tenant between them; that the plaintiff had not obtained a certificate from the Office of Price Administration authorizing her removal or eviction from the premises; and that no notice had been given her that a dispossessory-warrant proceeding had been instituted against her.
On the trial the plaintiff testified in part: that he had rented the premises to Mr. and Mrs. J. C. Hyde, jointly, but that no written contract of rental had been entered into; that he had made a demand for the premises before instituting the dispossessory-warrant proceeding; that he continued to accept the rent from Mrs. J. C. Hyde after the death of her husband; that he had not received a certificate from the Office of Price Administration for the eviction of Mrs. J. C. Hyde from the premises, although he had an application pending for such certificate on the ground that his son was being discharged from the Army. The plaintiff's wife testified to the same effect in support of his contentions.
The defendant testified in part: that she had continued to pay the rent to the plaintiff since the death of her husband on December 17, 1944; that she had received a letter from the plaintiff's attorneys, dated February 28, 1946, to vacate the premises within 60 days, but had not received any notice from the office of Price Administration with reference to vacating the premises.
An attorney for the Office of Price Administration testified that no certificate authorizing the eviction of Mrs. J. C. Hyde from the premises had been issued by that office, but an application of the plaintiff for such a certificate was pending. The attorney also testified as to the interpretation placed on the rent regulations by the Administrator of Price Administration.
It was stipulated, in part, by the parties that, "Under the regulations and provisions of the O. P. A. at this time and since September, 1945, a tenant may not be evicted without a certificate of eviction first having been secured from that office, except on the ground of nuisance or non-payment of rent." It was not contended that the defendant was operating a nuisance on the premises or that she had not paid the rent.
The trial court rendered judgment in favor of the plaintiff, and the defendant made an oral motion for a new trial, and thereafter filed a brief of the evidence properly approved by the trial judge and by counsel for the plaintiff. The defendant reduced her motion for a new trial to writing, and set out nine grounds in the motion. The trial judge approved the motion for a new trial and all grounds thereof except ground nine, which he did not approve but set out certain facts in conflict with those contained in this ground, and overruled the motion for a new trial. The appellate division affirmed the judgment of the trial court, and the defendant excepted to that judgment.
1. It appears from the pleadings and the evidence that the dispossessory warrant was issued against J. C. Hyde and Mrs. J. C. Hyde, and that J. C. Hyde died before a trial on the issues formed by the dispossessory warrant and the counter-affidavit of Mrs. Hyde. While an entry should have been made by the plaintiff to show the death of J. C. Hyde ( Tedlie v. Dill, 3 Ga. 104, 105), there is no exception to his failure to do so, and the case will be considered as if such entry had been made. "In all actions against two or more defendants, one or more of whom have died or may die pending said action, the plaintiff may suggest said death of record, and proceed against the surviving defendants to the extent of their respective liabilities." Code, § 3-506. Under the pleadings and evidence of this case, the cause of action of the plaintiff against the defendants did not abate on the death of J. C. Hyde, and the plaintiff had the right to proceed against the surviving defendant to remove her from the premises without making the legal representative of the deceased defendant a party, where no judgment was asked or obtained for double rent. The trial judge did not err in refusing to dismiss the action because of the death of J. C. Hyde, or in allowing the case to proceed against the surviving defendant without making the legal representative of the deceased defendant a party.
2. The defendant contends that the evidence demanded a finding that the original renting agreement had been entered into between the plaintiff and J. C. Hyde, and that Hyde or his legal representative was a necessary party to the action. The evidence, although conflicting, was sufficient to authorize the trial court to find that the original renting contract was made between the plaintiff and J. C. Hyde and Mrs. J. C. Hyde, jointly, and the contention of the defendant in this respect can not be sustained.
3. The defendant contends that the evidence demanded a finding that, after the death of her husband, she became a tenant at will of the plaintiff by reason of his accepting rent from her and giving her notice as such to vacate the premises. The plaintiff was seeking to dispossess the defendant upon the ground that she was holding the premises over and beyond the term for which they had been rented, and had refused upon demand to surrender possession of the same to him. The acceptance by the landlord of rent which accrued subsequently to the time the dispossessory warrant issued was not inconsistent with his demand for possession of his property, and did not, under the facts of this case, estop him from pressing his action to obtain possession of the premises, or demand a finding that, by accepting such rent, he had entered into a new contract of rental with the defendant, whereby she became a tenant at will of said premises. Allen v. Allen, 154 Ga. 581 ( 115 S.E. 17).
Under the evidence, a finding was not demanded that the plaintiff had entered into a new contract with the defendant, or that he was estopped from pressing his action to dispossess her, and the trial court did not err in its holding.
4. The defendant contends that the judgment against her was contrary to law because no certificate authorizing her eviction had been obtained by the plaintiff from the Office of Price Administration. It is undisputed that the premises involved are within the Atlanta Defense-Rental Area of the Office of Price Administration. It appears that the affidavit and dispossessory warrant issued under the provisions of the Rent Regulations of the Office of Price Administration, which, on August 18, 1944, provided that a tenant could be removed from the premises without a certificate from the Office of Price Administration, where the landlord sought in good faith to recover possession for the immediate purpose of demolishing or substantially altering or remodeling the house in a manner which could not practically be done with the tenant in possession. Section 6 (a, 5) of the Rent Regulations of the Office of Price Administration, which was in effect at the time the affidavit was made and the dispossessory warrant issued in August, 1944, permitted this to be done.
On September 15, 1945, while the present action was pending and before trial or final judgment therein, the rent regulations were amended, and section 6 (a, 5) under which the affidavit was made, was revoked, so that at the time of the trial in the court below, the pertinent Rent Regulations of the Office of Price Administration provided, in part: "So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations, by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any person attempt such removal or exclusion from possession or otherwise, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated," unless certain facts appeared, none of which appear in the present action. The regulations then provide: "No tenant shall be removed or evicted on grounds other than those stated above unless, on petition of the landlord, the Administrator certifies that the landlord may pursue his remedies in accordance with the requirements of the local law." Rent Regulations of the Office of Price Administration, Section 6 (a, b).
It appears that the landlord at the time of the trial did not have a certificate authorizing him to pursue his eviction proceeding against the defendant, but he contends that this was not necessary as the action had been commenced before such certificate was required by the Federal rent regulations. The rent regulations, having been promulgated under the authority of the Emergency Price Control Act of 1942, § 1 et seq. (50 U.S.C.A. App. § 901 et seq.), superseded State statutes, and are controlling in actions between landlords and tenants in the State courts. The contention of the plaintiff that the amendment to the rent regulations does not apply to pending actions is without merit. It was held by the United States Emergency Court of Appeals in Taylor v. Brown, 137 Fed. 2d, 654, that the power to fix maximum rates for housing accommodations, which power is exercised by the Emergency Price Control Act of 1942 and the regulations issued thereunder, was within the constitutional war power of Congress, and that the regulations issued thereunder with respect to pending leases was not invalid as impairing the obligation of existing contracts.
In the present case, the dispossessory-warrant proceeding was pending on September 15, 1945, when the regulation requiring a landlord to obtain a certificate for the eviction of a tenant under the circumstances shown went into effect. No final judgment of eviction had been entered in the case. In pending eviction proceedings, the Administrator of Price Administration has placed the following official interpretation on the rent regulation: "Where an action to evict is pending on the date the regulation becomes effective in a particular defense-rental area, the provisions of section 6 are applicable unless a court order has been entered prior to the effective date of the regulation, directing the tenant to surrender possession. . . If no such order has been entered, the landlord may not further pursue his proceedings except in accordance with section 6." Rent Regulation for Housing with Official Interpretations, Revised July 1, 1945, page 89. While this interpretation is not binding on the courts, it is entitled to persuasive weight (Goodman v. Bowles, United States Emergency Court of Appeals, 138 Fed. 2d, 917, 919); and we think that it is the proper construction to be placed on the rent regulations involved in this case. It was held in Schwartz v. Trajer Realty Corporation, 56 F. Supp. 930, that a tenant, who was in possession at the effective date of the Federal rent regulations, could not be dispossessed by the landlord without a compliance with the rent regulations, although the action to dispossess was pending at the time the rent regulations became effective.
It appearing in the present case that the defendant was in possession of the premises at the time the amendment of September 15, 1945, to the Federal rent regulations became effective, which requires that an order for the eviction of a tenant be obtained from the Office of Price Administration before such tenant can be legally removed or evicted from the premises, and that the plaintiff in this case had not obtained such an order at the time of the trial, the judgment of the trial court directing that the plaintiff be placed in possession of the premises was contrary to law; and this is true although the case was pending when the said amendment became effective. It follows that the trial judge erred in overruling the defendant's motion for a new trial, and that the appellate division of said court erred in affirming the judgment of the trial court.
Judgment reversed. Felton and Parker, JJ., concur.