Davenport v. Whittier Mills Company

Broyles, C. J. (After stating the foregoing facts.) It is well-settled law, by repeated decisions of the Supreme Court and this court, that in a dispossessoryrwarrant case, where the defendant has filed a counter-affidavit and given the required bond, the only questions to be determined on the trial of the case in the superior court are the issues raised by the plaintiff’s affidavit and the counter-affidavit; and that where the counter-affidavit fails to deny any basic allegation of fact contained in the affidavit of the plaintiff, such allegation is treated as admitted by the defendant. Mitchell *497 v. White, 74 Ga. 327 (2); Hindman v. Raper, 143 Ga. 643 (85 S. E. 843); Graf v. Shiver, 36 Ga. App. 532 (2) (137 S. E. 283); Bowling v. Hathcock, 27 Ga. App. 67 (2) (107 S. E. 384); Werner v. Footman, 54 Ga. 128 (1); Hughes v. Purcell, 198 Ga. 666 (3) (32 S. E. 2d, 392). In the instant case the counter-affidavit did not deny the allegation in the company’s affidavit that the relationship of landlord and tenant existed between it and Davenport; and therefore that relationship was definitely and finally established, and the contention of counsel for Davenport that such relationship did not exist is without merit. Furthermore, the existence of that relationship was shown by the undisputed evidence. The only allegations in the landlord’s affidavit denied in the counter-affidavit were that the tenant’s term of rent had expired and that he was holding possession over and beyond his term. And that issue was the only question before the court and jury, and the evidence in the case demanded a finding that the tenant had not paid his past-due rent and that he was holding the premises over and beyond his term. Therefore the court did not err in directing a verdict for the landlord. Moreover, there, was no exception, either in the bill .of exceptions or in the motion for a new trial, to the direction of the verdict, and therefore the judgment should be affirmed, even if it were only authorized, but not demanded, by the evidence. In grounds 5 and 6 of the motion for new trial, complaint is made of the exclusion of certain proffered testimony. The testimony excluded was not germane or applicable to any issue raised by the counter-affidavit, and the court did not err in rejecting the testimony and in restricting the evidence to questions which were applicable to the issues raised by the pleadings. “Evidence ought not to be admitted unless it be applicable to some issue made in the pleadings,” Bower v. Douglass, 25 Ga. 714 (2); Chattahoochee Valley Ry. Co. v. Bass, 9 Ga. App. 83 (8) (70 S. E. 683). The remaining special ground of the motion for new trial recites: That, when the case was called for trial, counsel for the movant requested the court to have the plaintiff, a corporation, furnish him with a list of its stockholders, for the purpose of ascertaining whether or not any of the prospective jurors were related to any of such stockholders; and that the judge refused the request, but inquired of the jury if any of them were related to a stockholder of the plaintiff corporation. Such refusal by the court is assigned as *498 error. Assuming, but not deciding, that the ruling of the court was error, it was not prejudicial error since the verdict was directed by the court. The denial of a new trial was not error. Judgment affirmed. All the judges concur generally, except MacIntyre, Gardner, and Parleer, JJ., who concur specially.