Hennon v. Mitchell

Court of Appeals of Georgia

Hennon v. Mitchell

108 S.E. 131, 27 Ga. App. 293, 1921 Ga. App. LEXIS 841

CourtCourt of Appeals of Georgia

DecidedJuly 13, 1921

Docket12433

StatusPublished

Cited by1 cases

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Hennon v. Mitchell, 108 S.E. 131, 27 Ga. App. 293, 1921 Ga. App. LEXIS 841 (Ga. Ct. App. 1921).

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Opinion

Broyles, C. J.

The 3d headnote alone needs elaboration. The plaintiff landlord swore out a dispossessory warrant against the defendants on November 17, 1919, in which she alleged that they had failed to pay the rent for the year 1919, which was due on November 15, 1919, and that she desired possession of the land and that the defendants had refused to give her such possession. The defendants filed a counter-affidavit and gave the required bond. Upon the trial the plaintiff asked for double rent, and the judge charged the jury that, if they found any amount for her, they should double that amount. A verdict in favor of the plaintiff for $372.34, and the possession of the premises, was returned. The defendants’ motion for a new trial was overruled, and they excepted.

Counsel for the plaintiffs in error contend that as no demand for the possession of the premises was shown on the trial, the plaintiff was not entitled to recover double rent. Such is the general rule. However, where, as in this case, the question as to demand is not raised in the counter-affidavit, “ it will be presumed to have been made as a pre-requisite to the issuance of the warrant,’ and “the plaintiff would be entitled to recover from the tenant double rent from the date of the issuance of the dispossessory warrant.” Hindman v. Raper, 143 Ga. 643 (2) (85 S. E. 843); Bowling v. Hathcock, 27 Ga. App. 67 (107 S. E. 384).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

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Broyles, C. J.

The 3d headnote alone needs elaboration. The plaintiff landlord swore out a dispossessory warrant against the defendants on November 17, 1919, in which she alleged that they had failed to pay the rent for the year 1919, which was due on November 15, 1919, and that she desired possession of the land and that the defendants had refused to give her such possession. The defendants filed a counter-affidavit and gave the required bond. Upon the trial the plaintiff asked for double rent, and the judge charged the jury that, if they found any amount for her, they should double that amount. A verdict in favor of the plaintiff for $372.34, and the possession of the premises, was returned. The defendants’ motion for a new trial was overruled, and they excepted.

Counsel for the plaintiffs in error contend that as no demand for the possession of the premises was shown on the trial, the plaintiff was not entitled to recover double rent. Such is the general rule. However, where, as in this case, the question as to demand is not raised in the counter-affidavit, “ it will be presumed to have been made as a pre-requisite to the issuance of the warrant,’ and “the plaintiff would be entitled to recover from the tenant double rent from the date of the issuance of the dispossessory warrant.” Hindman v. Raper, 143 Ga. 643 (2) (85 S. E. 843); Bowling v. Hathcock, 27 Ga. App. 67 (107 S. E. 384).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

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108 S.E. 131, 27 Ga. App. 293, 1921 Ga. App. LEXIS 841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hennon-v-mitchell-gactapp-1921.

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