Foy v. McCrary

121 S.E. 804, 157 Ga. 461, 1924 Ga. LEXIS 176

• Court: Supreme Court of Georgia
• Decided: February 13, 1924
• Docket: No. 3729
• Status: Published

Opinion

Atkinson, J.

1. An oral announcement by the judge of the superior court, sustaining a demurrer to a plea, does not become a judgment of the court until reduced to writing and signed by the judge. Lytle v. DeVaughn, 81 Ga. 226 (7 S. E, 281); Freeman v. Brown, 115 Ga. 23 (41 S. E. 385); Cureton v. Cureton, 120 Ga. 559, 566 (48 S. E. 162); Alexander v. Chipstead, 152 Ga. 851, 861 (111 S. E. 552); Macon, Dublin & Savannah Railroad Co. v. Leslie, 148 Ga. 524 (97 S. E. 438); Swilley v. Hooker, 126 Ga. 353 (2) (55 S. E. 31). The refusal of the judge at a succeeding term to enter a written judgment nunc pro tunc, conformably to the oral announcement previously rendered, will not be reversed.

2. In a statutory proceeding for summary eviction of a tenant the defendant may repel the charge that he is a tenant, by proving, under his plea by counter-affidavit, that the effect of the transaction between himself and the alleged landlord as performed by the defendant is to constitute such defendant the owner of the land. When, on the trial of the issue so formed, the question of title is actually decided by the superior court, the judgment therein rendered may be pleaded in estoppel to an action of ejectment between the same parties or their privies. Garrick v. Tidwell, 151 Ga. 294 (106 S. E. 551); Allen v. Allen, 154 Ga. 581 (115 S. E. 17).

No. 3729. February 13, 1924.

3. Where, after trial of a case based on summary proceedings of the character mentioned in the preceding note, the grantee of the alleged tenant sued the alleged landlord in ejectment to recover the land, and on the trial of the ejectment suit-the former judgment in the dispossessory case was pleaded in the original answer as an estoppel, it was not erroneous, at the conclusion of the evidence on both sides, to allow, over the objection that it came too late, an amendment to that part of the answer that set up estoppel applicable to evidence that was introduced, alleging more specifically matters that were injected in the dispossessory case to show that the alleged tenant was owner of the land, and that the issue as to all such matters was determined adversely to the alleged tenant. Civil Code (1910), §§ 5640, 5681; National Bank of Augusta v. Southern Porcelain Mfg. Co., 59 Ga. 157; Walden v. Walden, 128 Ga. 126 (6) (57 S. E. 323); Hill v. Cox, 151 Ga. 599 (2) (107 S. E. 850).

4. On the trial of the ejectment suit the parties relied on deeds from the alleged tenant in the dispossessory case. The deed of the plaintiff was junior and taken with notice of the deed to the defendant. The latter deed was attacked on various grounds, but the uncontradieted evidence showed that all the grounds of attack were made in the dispossessory proceeding and decided adversely to the plaintiff’s grantor. Held, that the evidence demanded a verdict for the defendant, and the judge did not err in refusing the plaintiff’s motion for a new trial.

Judgment affirmed.

All the Justices concur. W. E. Steed, G. W. Foy, and Homer Beeland, for plaintiff. Jule Felton and Montfort & Robinson, for defendant.