Mitchell v. Masury

Evans, P. J. 1-3. On the call of the case the defendant in. error moved to dismiss the bill of exceptions, on the ground that the certificate thereto directed that it and the record be transmitted to the Court of Appeals, and as the Court of Appeals had no jurisdiction of the case, no bill of exceptions had been legally filed in the Supreme Court. It appears from the record that the Court of Appeals, on an examination of the record, passed an order directing that the ease be dismissed from its files, and that the bill of exceptions and the record be' transmitted to the Supreme Court. The record was accordingly transmitted, and on an inspection thereof it appears that the Supreme Court has sole jurisdiction of the ease; and under the ruling in Dawson v. State, 130 Ga. 127 (60 S. E. 315), such case will be retained and entered on the docket of the Supreme Court for hearing and determination. Nor will the writ of error be dismissed on the ground stated in the second headnote. Cook v. Childers, 94 Ga. 718 (19 S. E. 819). Counsel for plaintiff in error make the further point that even on failure to dismiss the bill of exceptions on the ground that the brief of evidence considered by the judge in passing on the motion for a new trial was not filed pursuant to the order of the court, still such brief should be disregarded, and such assignments as are dependent upon the evidence for determination present no question for -decision. Where a term order allows the movant until the hearing to make out and present a brief of the evidence for the approval of the court, and to file the same with the clerk within ten days thereafter, it has been held that a brief which has been approved by the judge, but not filed in the clerk’s office at the time of the hearing, is sufficient to prevent the dismissal of the motion for new trial. Elmore v. Thaggard, 130 Ga. 701 (61 S. E. 726). The brief of evidence is an essential part of a motion for new trial, and its approval by the judge under an order allowing him to do so at the hearing, and making provision for its subsequent filing, is the legal equivalent of an entry of filing upon the brief by the clerk. Malsby v. Young, 104 Ga. 205 (30 S. E. 854). Such being the ease, the limitation of time in the order providing for such subsequent filing after the hearing is necessarily directory and not mandatory; and if the brief in point of fact be filed by the time the bill of exceptions is certified and such brief be specified in the bill of exceptions as a part of the record, and accordingly transmitted, [363] this court will consider and pass upon such assignments of error as depend upon an examination of the evidence for their determination. 4. The case under consideration arose in this manner: On October 11, 1900, Mrs. Grace Masury leased in writing to J. W. H. Mitchell, for a term of five years, a certain house and lot for $200 per annum, payable quarterly in advance. On June 6, 1905, Mitchell wrote to Mrs. Masury, proposing to renew the lease for the same term of years, to which Mrs. Masury replied) June 20, 1905, as follows: “Mr. John W. H. Mitchell, Thomasville, Ga, Dear Sir: — Your favor of 6th instant came to hand to-day; and in reply would say I am willing that you should release the property on which you are now living at the same rate. At the extremely low rate which you pay, it seems to me that you could keep the premises in slightly better repair. The renewal of the lease can be drawn by my son-in-law, Mr. Sturgis, before the present one expires; and after the signing of the new lease you will kindly pay the rent to me directly. Mr. Sturgis will acquaint Mr. Mallette of this plan in due time. June 2, 1905. Yours truly, [signed] (Mrs.) Grace Masury, per E. M. S.” Mitchell remained in possession, paying rent according to the terms of the expired lease, and in April, 1906, Sturgis and Mitchell had an interview relative to the preparation of a new lease. Sturgis prepared a lease contract and sent it to Mitchell for signature, who refused to sign it. On August 24, 1907, Mrs. Masury gave Mitchell written notice that she had agreed to sell the place, and for him to vacate. Mitchell declined to surrender possession, and on November 16, 1907, Mrs. Masury sued out a dispossessory warrant. Mitchell filed thé statutory counter-affidavit thereto, and on February 4, 1907, Mrs. Masury dismissed her proceedings. On the same day, but after the dismissal of the dispossessory warrant proceedings, Mrs. Masury’s attorney, W. C. Snodgrass, made affidavit as attorney for Mrs. Masury, executrix of the last will and testament of John W. Masury, deceased, that Mitchell occupied the premises (the same as described in the former proceedings) as a tenant at will, that demand was made for the same on August 14, 1907; that there was $50 past-due rent, which rent was demanded after due, and payment refused. An eviction warrant issued, and Mitchell filed, with the officer to whom it was given to execute, his counter: [364] affidavit, denying that he was a tenant holding over, and denying that he was due any rent. The affidavit and warrant of the landlord and the counter-affidavit of the tenant were returned to the superior court for trial, and the plaintiff prevailed. At the trial the plaintiff moved to amend the affidavit and eviction warrant by striking therefrom the words, “executrix of the last will and testament of John W. Masury deceased,” so that the cause may proceed in the name of Grace Masury. The amendment was allowed, and pendente-lite exceptions were taken. All affidavits that are the foundation of legal proceedings are amendable to the same extent as ordinary declarations. Civil Code, § 5122. In an action by or against an executor the declaration may be amended by striking out the representative character of the plaintiff. Civil Code, §5106. 5. The' defendant moved to strike the affidavit because it was undated, and the court allowed the date to be supplied by amendment. The allowance of this amendment was proper. Civil Code, §5106. 6. At the trial term the defendant filed his plea in abatement, on the ground that no oath was administered to or taken by the person who subscribed the alleged affidavit upon which the eviction warrant issued. The court struck the plea, and exception pendente lite was taken. It is immaterial to decide whether this defense could have been made by special plea, because after the court made this ruling the defendant on his own initiative examined as witnesses both the person alleged to have made the affidavit, and the magistrate before whom it is alleged to have been made, as to the execution of the affidavit, and whether any oath was administered at the time, and the court instructed the jury on this subject. The defendant was allowed to make the defense notwithstanding his plea in abatement was stricken, and can have no real ground for complaint because of the refusal of the court to separately submit the issue. See LeMaster v. Orr, 101 Ga. 762 (29 S. E. 32). 7. On the trial, in addition to the facts already appearing, evidence was introduced by the plaintiff, tending to show that some time in April, 1906, Sturgis (the plaintiff’s attorney) and Mitchell met and agreed upon the terms of a lease which Sturgis reduced to writing according to his understanding of the agreement. One of these terms was' that the landlord reserved the right to sell the [365] premises on 60 days notice. Sturgis sent the lease contract to Mitchell for execution, who refused to sign it. Mitchell testified that he did not sign the lease contract which Sturgis prepared, because its terms were different from the old lease which was renewed by Mrs. Masury’s letter of June 20. The old lease expired October 1, 1905, and from that time to January 1, 1908, Mitchell has paid the rent to Mrs. Masury. The court charged: “In this case, it is agreed that Mr. Mitchell the defendant, was a tenant of Mrs. Masury of the property known as the Blackshear place, on the Boston road, on the outskirts of Thomasville, and that Mrs. Masury is seeking to recover the possession of that property from the tenant, on two grounds, that he is a tenant at will, a tenant holding over beyond his term, who becomes, under such circumstances as testified here, a tenant at will; that is, if he holds beyond his term, and the landlord accepts rent from him, allows him to go on, accepts rent, that makes him a tenant at will.” The criticism is that the court expressed an opinion that under the testimony in the case the defendant was a tenant at will. The defendant in his pleading and in his testimony denied that he was a tenant at will. It was his contention that his letter and Mrs. Masury’s reply extended the provisions of the old contract for a period of five years; while the landlord contended that the letter disclosed on its face that it was not to be considered as closing up a lease contract, but only indicated her willingness to release the property at the same rate. It is not altogether clear that the landlord intended by her letter that the new lease should embrace all the terms and covenants of the old lease, or only that the proposition as to rental price was absolutely accepted, leaving the other provisions, such as duration of term, etc., to be incorporated in the new lease. But Mitchell rejected the lease contract prepared by Sturgis in the spring of 1906, and continued to pay rent, according to his contention, pursuant to the obligation of the old contract, until January 1, 1908. He contended that the rent was received by Mrs. Masury with knowledge that he was relying upon her letter as extending the old contract, with all its provisions, for five years; and if the jury should find such was the truth of the ease, then Mitchell would not be a tenant at will. The charge was hurtful for the reason given. 8. Exception is taken to this charge: “There must be enough before you to satisfy your mind that the party making the affidavit [366] meant to swear to it, and the officer so understood it; meant to swear to it, and to swear to the truth of it .and attest it.” The court was instructing the jury upon the question as to whether there had been any affidavit made upon which the dispossessory warrant issued, and the criticism is that an intention to make an affidavit is treated as the equivalent of its actual execution. The excerpt to which exception is taken is but a fragment of what the court charged. The jury were instructed in the same connection: "There is no special form1 of words necessary to constitute an oath, but it is necessary for enough to be said by affiant to indicate to the officer that he wanted to swear to it, and did swear to it, and the officer so understood it and accepted it as such and signed it accordingly.” According to the ruling in McCain v. Bonner, 122 Ga. 846 (51 S. E. 36), there was ho error in the full instruction. 9-11. Otherwise than as indicated no cause for a new trial is made to appear! ‘Judgment reversed. All the Justices concur.