Gregory v. Mayor of Athens

234 S.E.2d 404, 141 Ga. App. 821, 1977 Ga. App. LEXIS 2079

Opinion

Deen, Presiding Judge.

In Mrs. Gregory’s ejectment action there was a prayer for mesne profits but this claim was eliminated from consideration by the jury by the court’s charge; there was no exception to this action of the court by Mrs. Gregory. Mesne profits accruing to Mrs. Gregory up to the time of the verdict in the ejectment action could have been recovered only in that proceeding. Beetles v. Steadham, 187 Ga. 601 (1 SE2d 431). Those accruing thereafter, and while the case was on appeal could have been recovered only by following the procedure outlined in Brown v. Tyson, 150 Ga. 598 (104 SE 420); this procedure was not followed here. These remedies being exclusive and Mrs. Gregory’s counterclaim to the action for injunctive relief being in the nature of a separate action for recovery of mesne profits, the motion to strike was properly granted. Code § 33-105.

Judgment affirmed.

Webb and Marshall, JJ., concur.