Cartey v. Swain

Townsend, J. (After stating the foregoing facts.) Section 6 (d) 1, dated October 15, 1946, defense rental.regulation of the Office of Price Administration provides for the giving of written notice at least 10 days prior to the time specified for the surrender of possession and to the commencement of any action for *324 removal or eviction, said notice to be given to the tenant and to the area rent office, and stating the ground upon which removal or eviction is sought, and the time when the tenant is required to surrender possession. Section 6 (2) provides that a notice in writing shall be given the area rent office at the time of commencement of any action to remove or evict a tenant, said notice stating the title of the case, the number of the case, where possible, the court in which it is filed, the name and address of the tenant and the ground on which removal or eviction is sought. The two notices herein described are not incompatible or antagonistic to each other, and the giving of both notices is required by law; the first at least 10 days before the beginning of the eviction proceedings, and the latter on the day of the institution of the proceedings. See DeRieux v. Bower, 73 Ga. App. 160 (35 S. E. 2d, 776). The brief of counsel for the plaintiff in error discloses that she contends that the failure to comply with O. P. A. regulations in an eviction proceeding, in order to be relied upon as a defense, must be specially pleaded. Code, § 81-307 and Savage v. Weeks, 73 Ga. App. 621 (37 S. E. 2d, 549), are cited in support of this contention. Section 81-307 of the Code provides as follows: “Under-a denial of the allegations in the plaintiff’s petition, no other defense is admissible except such as disproves the plaintiff’s cause of action; all other matters in- satisfaction or avoidance must be specially pleaded.” In Savage v. Weeks, on motion for rehearing (page 625), it appears that the question of the failure to give the notices required prior to and at the time of the dispossessory proceedings was raised for the first time in the Court of Appeals on the motion for rehearing, and was based upon the ground that there was no proof in the record that the plaintiff gave these notices. On rehearing the court pointed out (page 626) that “There is nothing in the instant case to show that the defendant, by. pleading, by evidence or otherwise specifically claimed any right under O. P. A. regulations in the trial court. If he expected to assert any supposed right under O. P. A. regulations, then ■ in fairness to the trial court he should have raised the question in that court.” Here the record discloses the introduction of both regulations, section 6 (d) 1 and section 6 (2) together with the evidence that *325 the notice provided for in the former was given and that provided for in the latter was not given. This evidence is in the record without objection. Where evidence is admitted without objection, although there be no pleading authorizing it, the losing party is not entitled to a hew trial on the ground that the evidence is not supported by the pleadings, if the pleadings could, by amendment, have been made to authorize the evidence. See Gainesville & Northwestern Railroad v. Galloway, 17 Ga. App. 702, Freeze v. White, 120 Ga. 446, Joseph Liebling Inc. v. Tabb & Co., 30 Ga. App. and Kiser v. Westbrook, 33 Ga. App. 208 (supra). While such defenses can not be raised for the first time in courts of review (Savage v. Weeks, supra, Harrell v. Blount, 112 Ga. 711 (2), 38 S. E. 56), yet it is well settled in this State that such issues may be raised by evidence, unobjected to, not supported by the pleadings, but of such materiality as to constitute proper subject-matter of the pleadings. Such evidence, unsupported by the pleadings, is subject to objection until the pleadings are amended to authorize it, and had objections been interposed to this evidence, and no amendment offered or allowed to authorize it, the issue here made by the evidence would not have been in the case. The evidence being undisputed that the notice provided for in section 6 (2) was not given, the trial court did not err in directing a verdict in favor of the defendant and in entering a judgment in favor of the defendant based thereon. Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.